Secretary of State for Communities and Local Government v South Gloucestershire Council & Anor

Where a planning decision is unlawful, the court may withhold a quashing order only if satisfied that the decision-maker would necessarily have reached the same decision without the error. Probability, strong likelihood or near certainty is insufficient.

The exercise of planning judgment remains for the decision-maker. Exceptionally, however, relief may be withheld where the erroneous consideration could not conceivably have affected the outcome in light of the decision letter as a whole. A concern that the erroneous reasoning might be cited as a precedent carries no weight where a judicial judgment has already identified and neutralised the error.

An inspector granted personal planning permission for a mobile home in the Green Belt. The inspector found serious Green Belt harm, but concluded that the occupier’s exceptional mental-health needs, his family’s circumstances, the child’s best interests and their Convention rights clearly outweighed that harm.

On an application under section 288 of the Town and Country Planning Act 1990, Singh J held that the inspector had committed three errors concerning the local authority’s five-year housing-land supply and quashed the decision: [2014] EWHC 4555 (Admin). The Secretary of State did not dispute those errors on appeal.

The sole live issue was whether the judge’s exercise of discretion should be set aside because the inspector would necessarily have granted permission even if the housing-land-supply issue had been addressed correctly.

1. Appeal allowed. The circumstances were sufficiently exceptional to justify setting aside Singh J’s exercise of discretion. The inspector’s decision granting planning permission was restored.

2. Under section 288(5)(b) of the Town and Country Planning Act 1990, the discretion not to quash an unlawful decision is very narrow. The court must be satisfied that the decision-maker would necessarily have reached the same result without the error. A finding that the result probably, very likely or almost certainly would have been the same does not suffice. This stringent standard respects the principle that planning judgment belongs to the planning decision-maker, not the court.

3. The inspector had treated the absence of a five-year housing-land supply as weighing in favour of permission, but described it as having only relatively limited significance. He did not mention it when undertaking the decisive Green Belt balance. By contrast, he gave substantial weight to the occupier’s exceptional health needs, his family’s personal circumstances, the child’s best interests, the absence of suitable alternative accommodation and the relevant human-rights considerations.

4. Reading the decision letter as a whole, there was no real possibility that establishing a sufficient housing-land supply could have altered the result. A single dwelling subject to a personal occupancy condition could make no material contribution to any shortfall. Given the extraordinary strength of the other considerations, a different outcome was inconceivable.

5. The judge’s concern that the inspector’s erroneous housing-land-supply analysis might be relied on as a precedent should not have influenced the remedial discretion. The judge’s own judgment had clearly and authoritatively identified the errors, thereby preventing legitimate future reliance on that analysis.

6. The court declined to determine whether a declaration may be granted in section 288 proceedings. Even assuming that jurisdiction existed, a declaration was unnecessary because the errors were already stated with complete clarity in the High Court’s narrative judgment and declaratory relief would add nothing.

David Richards LJ agreed with Lindblom LJ.

1. Court of Appeal (Civil Division): The appeal was allowed and the inspector’s decision granting planning permission was restored: [2016] EWCA Civ 74.

2. High Court, Administrative Court, Planning Court: Singh J found three serious errors of law in the inspector’s treatment of housing-land supply and quashed the decision: [2014] EWHC 4555 (Admin).

3. Earlier proceedings: An earlier inspector’s decision had been quashed by HHJ Thornton QC in December 2012, after which the planning appeal was remitted for redetermination by another inspector.