Wiltshire Council v Secretary of State for Communities And Local Government & Ors

Where an error of law has been established in a planning decision, the court retains a discretion as to the appropriate remedy. In exceptional circumstances, a declaration of unlawfulness may be granted instead of quashing the decision. The court must evaluate all relevant circumstances, including the public interest, fairness to affected parties, the parties’ responsibility for the error, and the practical prejudice likely to result from remittal. The court should not speculate about the planning weight that a properly directed decision-maker might give to a material consideration.

This was a supplementary judgment following the court’s earlier decision, [2015] EWHC 1261 (Admin), in a planning challenge brought by Wiltshire Council against the Secretary of State and the developer defendants. The court had found an error of law in the section 78 appeal decision because the inspector failed to take into account a material matter.

The developer defendants subsequently submitted that, because of the unusual circumstances, the court should make a declaration of unlawfulness rather than quash the decision letter. The central issue was whether declaratory relief was an appropriate and proportionate alternative to quashing.

1. Remedy. Although the decision was invalid because of an error of law, the court had a discretion as to the nature of the relief. In the exceptional circumstances, a declaration identifying the unlawfulness was appropriate instead of a quashing order.
2. Relevant circumstances. The court considered the position of all parties, the public interest in the outcome of planning appeals, the fact that the first defendant had acted unlawfully, the claimant had acted appropriately, and the developer defendants had been disadvantaged through no fault of their own. Fairness operated in both directions.
3. Materiality and speculation. Having found that a material consideration should have been placed in the decision-maker’s assessment, the court should not speculate about what weight an inspector considering the planning merits would give it. That question belonged to the properly directed decision-maker.
4. Conduct and prejudice. The claimant had followed PINS advice in submitting the examining inspector’s report to the case officer and had acted properly at the material time, although its position could have been expressed more clearly in emails of 3 and 9 December 2014. The defendants’ concerns about the concession, communications and the prospect of a different planning context did not justify quashing being treated as disproportionate in the circumstances.
5. Order. The court granted a declaration in the terms agreed by the parties, recognising the unlawfulness while avoiding the further disadvantage that remittal and a fresh planning process might cause to the developer defendants.

This was a supplementary first-instance judgment concerning the appropriate remedy after the court’s earlier decision in [2015] EWHC 1261 (Admin). The court granted a declaration instead of quashing the decision letter.