Summary
A decision-maker considering a later planning application must exercise an independent judgment, while giving proper weight to an earlier decision in an indistinguishable or sufficiently related case. Consistency does not impose a legal requirement for a “good” or “very good” planning reason before departing from an earlier conclusion. The decision-maker must instead explain the reasoning for any departure.
A previous planning decision is a material consideration where the cases are sufficiently closely related, assessed by reference to their similarities and differences. Site-specific balancing exercises involving different developments, needs and benefits will often be distinguishable. A consideration is not legally mandatory merely because it might have affected the outcome.
Factual background
The Council sought to quash the Secretary of State’s decision granting planning permission for a strategic rail freight interchange at the former Radlett Aerodrome. The challenge arose from the redetermination of Helioslough’s second planning appeal after the earlier decision had been quashed in separate proceedings.
Two grounds were advanced. First, the Council alleged that the Inspector and Secretary of State had unlawfully required a “very good planning reason” before departing from conclusions reached on the first application. Secondly, it alleged that the Secretary of State had failed to take into account a later decision refusing permission for a waste management facility at New Barnfield, Hertfordshire. The Council also relied on procedural unfairness and legitimate expectation.
Held
- Ground 1 dismissed. The references to a “very good planning reason” in the Inspector’s report and the Secretary of State’s decision letter did not impose a legal test or fetter the decision-maker’s discretion. Properly understood, they described the weight attributable to conclusions reached after a lengthy inquiry and detailed assessment. The consistency principle required the decision-maker to recognise the importance of the earlier decision and give reasons for departing from it, but permitted an independent assessment of the later application.
- The reasoning in R (King’s Cross Railway Land Group) v Camden LBC [2007] EWHC 1515 (Admin) was concerned with practical realities and the weight to be given to an earlier decision, not with a legal threshold. Dunster Properties Limited v First Secretary of State [2007] 2 P & CR 26 confirmed that a later decision-maker must address the intellectual substance of any disagreement and provide reasons.
- Ground 2 dismissed. Under section 70(2) of the Town and Country Planning Act 1990, the court determines whether a consideration is legally relevant, while the decision-maker determines its weight subject to irrationality. Whether an earlier planning decision is a mandatory material consideration depends on context. The relevant inquiry may be whether it is obviously material, whether it is sufficiently closely related to the issues, or whether it was fundamental or had a real possibility of affecting the outcome.
- The New Barnfield decision concerned a different development, site, need, scale, policy context and site-specific balance. Its findings could not be separated from the benefits and requirements of that proposal. The two decisions were therefore distinguishable, and the Secretary of State was not legally obliged to take the New Barnfield decision into account.
- The complaints of procedural unfairness and legitimate expectation consequently fell away. The court declined to decide the wider effect of the subsequent quashing of the New Barnfield decision, observing that parts of a quashed planning decision may in some circumstances remain capable of consideration.
- The claim was dismissed. The Council was ordered to pay the First Defendant’s costs of £13,269 and the Second Defendant’s costs of preparing a specified witness statement. Permission to appeal was refused, but time for filing a notice of appeal was extended to 13 April 2015.
The court’s approach to earlier authorities
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Key cases cited
29 authorities cited.
- Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13
- South Bucks District Council and another (Respondents) v. Porter (FC) (Appellant) [2004] UKHL 33
- Boddington v British Transport Police [1998] UKHL 13
- Bolton Metropolitan District Council v Secretary of State for the Environment (Bolton Metropolitan District Council v Manchester Ship Canal Co, Bolton Metropolitan District Council v Trafford Park Development Corpn) [1995] 1 WLR 1176
- Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759
- Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1
- Secretary of State for Communities and Local Government v Hopkins Developments Ltd [2014] EWCA Civ 470
- Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P & CR 6
- Shoesmith, R (on the application of) v OFSTED & Ors [2011] EWCA Civ 642
- Dunster Properties Ltd v The First Secretary of State & Anor [2007] EWCA Civ 236
- National Association of Health Stores & Anor, R (on the application of) v Department of Health [2005] EWCA Civ 154
- R (Kides) v South Cambridgeshire District Council [2003] 1 P & CR 19
- R (J (A Child)) v North Warwickshire BC [2001] P.L.C.R. 31
- Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government & Anor [2014] EWHC 754 (Admin)
- Vallis v Secretary of State [2012] EWHC 578 (Admin)
- King's Cross Railway Lands Group v London Borough of Camden [2007] EWHC 1515 (Admin)
- Derbyshire Dales DC v Secretary of State for Communities and Local Government [2010] JPL 341
- R (Redditch BC) v First Secretary of State [2003] 2 P & CR 25
- R v Camden LBC ex parte Cran (1996) 94 LGR 8
- R. v Secretary of State for the Environment, ex parte Baber [1996] JPL 1034
- Secretary of State v Edwards (1995) 68 P & CR 60
- North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137
- R v Secretary of State for the Environment, ex parte Gosport Borough Council [1992] JPL 476
- Bolton MBC v Secretary of State for the Environment and Another [1991] 61 P & CR 343
- In re Findlay (Hogben, In re, Honeyman, In re, Matthews, In re) [1985] AC 318
- GLC v Secretary of State for the Environment and Another [1985] JPL 868
- CREEDNZ Inc v Governor General [1981] 1 NZLR 172
- George v Secretary of State for the Environment (1979) 77 LGR 689
- Practice Direction (Taxation: Decimal Currency) [1970] 1 WLR 1281
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Cases citing this case
6 later cases · 2 positive · 2 neutral · 2 caution
Most senior citing decisions:
- Edward Blacker, R (on the application of) v Chelmsford City Council [2023] EWCA Civ 25 distinguished
- DLA Delivery Ltd v Baroness Cumberlege of Newick & Anor (Rev 1) [2018] EWCA Civ 1305 considered
- REGINA v CHELMSFORD CITY COUNCIL [2021] EWHC 3285 (Admin) distinguished
- Parkhurst Road Ltd v Secretary of State for Communities And Local Government & Anor [2018] EWHC 991 (Admin)
- Moulton Parish Council & Anor v Secretary of State for Communities and Local Government [2017] EWHC 1047 (Admin)
- Gill v The Secretary of State for Communities and Local Government & Anor [2015] EWHC 2660 (Admin)
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