Robinson v Secretary of State for Communities and Local Government & Anor

In a statutory planning challenge, late evidence may justify intervention where objective unfairness has caused a mistake of fact. The material must concern an existing fact or evidence, be established, reliable and objectively verifiable, be unconnected with fault by the challenger, and have played a material part in the decision.

Policies for housing supply may be out of date without losing all weight. The decision-maker must still identify the conflict with the development plan and assess its nature and weight under the statutory planning framework.

An inspector is not required to consider every policy in the National Planning Policy Framework where the relevant policy has not been raised and the material before the inspector does not engage it.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision allowing an appeal and granting outline permission for up to 14 dwellings at Rushmere St Andrew.

She alleged that the local planning authority had failed to provide updated housing-land-supply figures, that the inspector had misunderstood the effect of out-of-date development-plan policies, and that he had failed to consider policies concerning valued community facilities and open space in the National Planning Policy Framework.

The central questions were whether the decision was procedurally unfair or legally erroneous, and, if so, whether the errors justified quashing the decision.

1. Housing land supply. The court rejected any implied duty under the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009 requiring the authority to submit the newly published housing-land-supply assessment. The document was an untested assessment involving judgment and prediction. It was not sufficiently reliable or uncontentious to establish a mistake of fact or objective unfairness. The authority’s failure to submit it could not ground the challenge.
2. The principles in Patel v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1963 (Admin), R (Connolly) v Havering LBC [2009] EWCA Civ 1059, R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330 and E v Secretary of State for the Home Department [2004] EWCA Civ 49 were not confined to breaches of procedural regulations. They nevertheless required reliable, objective and uncontentious material, and the present evidence failed that test.
3. Development plan. The inspector had erred in treating policies SP27, SP29 and DM3 as incapable of carrying weight merely because they were out of date. Under section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990, he had to identify the departure from the development plan and assess the weight of the relevant policies. However, the error was immaterial. The decision showed that the inspector had fully considered the protection of the countryside and settlement gaps, and it was inconceivable that the omitted policies would have affected the result.
4. Community facility and open space policies. On the facts, agricultural land without formal arrangements for public access or use was not a community facility or shared space under paragraph 70 of the NPPF. It was also not open space of public value for paragraph 74 unless the relevant public-value requirement was met. The inspector was entitled to give the site’s informal community use limited weight.
5. An inspector deciding a written-representations appeal is generally entitled to determine it by reference to the parts of the NPPF identified in the parties’ representations. He was not required to cross-check the proposal against every paragraph of the NPPF. The claim was dismissed. The first defendant was awarded costs capped at £10,000. Permission to appeal was refused.

Not stated in the judgment.