Robinson v Secretary of State for Communities And Local Government & Ors

A planning decision may be challenged for objective unfairness arising from a mistake of fact where the material is reliable, uncontentious and objectively verifiable, the claimant is not responsible for the mistake, and the mistake materially influenced the decision. A local planning authority has no general duty under the written representations procedure to update an inspector with later housing-land assessments. Development-plan policies which are out of date remain relevant and must be considered, although an error in failing to assess their weight will not justify quashing where it could not have affected the result. Inspectors need not independently cross-check every policy in the National Planning Policy Framework when the relevant policy has not been raised by the parties.

The claimant brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision allowing an appeal under section 78 and granting outline permission for up to 14 dwellings. The inspector had relied on an agreed housing-land supply of 4.3 years, treated certain housing policies as out of date, and gave limited weight to the site’s informal community use.

The challenge alleged: failure by the local planning authority to provide a later published housing-land assessment; failure to comply with the statutory development-plan duties; and failure to apply policies concerning valued community facilities and open space. The central questions were whether the later assessment engaged the doctrine of objective unfairness, whether the inspector’s treatment of out-of-date policies was legally adequate, and whether the site fell within the relevant policies of the NPPF.

1. The claim was dismissed. The first defendant was awarded costs, summarily assessed and capped at £10,000. Permission to appeal was refused.
2. There was no implied general updating obligation under the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009. The later housing-land document contained an untested assessment involving judgment and prediction. It was not sufficiently reliable or uncontentious to establish objective unfairness or a mistake of fact. The local planning authority was entitled to decide whether to bring it to the inspector’s attention.
3. The principles in 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 applied beyond procedural non-compliance, but remained narrowly confined. The relevant material must concern an existing fact or evidence which is established, reliable, objectively verifiable and uncontentious; the person challenging the decision must not have caused the mistake; and the mistake must have materially influenced the reasoning.
4. Policies which are out of date remain part of the development-plan framework. The inspector therefore erred in treating the relevant settlement-boundary and countryside policies as requiring no further consideration merely because of the housing-land shortfall. However, the error was immaterial. The decision letter showed that the inspector had fully considered the protection of the countryside and strategic gaps, and it was inconceivable that additional weight for conflict with the complementary policies would have altered the result.
5. The site was not, on the evidence, a community facility or shared space under paragraph 70 of the NPPF. Nor was it an open space of public value for paragraph 74, because there were no formal arrangements for public access or use. The inspector was entitled to give the site’s informal community value limited weight. This conclusion was also supported by the fact that paragraph 74 had not been raised in the written representations. An inspector need not cross-check a proposal against every paragraph of the NPPF.

The Secretary of State’s inspector allowed the planning appeal under section 78 of the Town and Country Planning Act 1990 and granted permission for up to 14 dwellings. The High Court dismissed the claimant’s section 288 challenge and refused permission to appeal.