Moulton Parish Council & Anor v Secretary of State for Communities and Local Government

When national planning policy creates a presumption in favour of sustainable development, the decision-maker must apply the prescribed balancing exercise and take its result into account under section 38(6) of the Planning and Compulsory Purchase Act 2004. A decision-maker who departs from an earlier decision on a materially similar issue must acknowledge it and give reasons for the departure, particularly where the inconsistency is stark. A failure to address either matter may invalidate the decision. The court also held that policy DM48 could, as a matter of interpretation, encompass a risk that adverse perceptions would threaten the long-term viability of the horseracing industry. The claim succeeded because the Secretary of State failed to apply the national policy balance and failed to explain his departure from his earlier highway-safety conclusions.

The claimants challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s refusal of outline permission for up to 400 dwellings and associated infrastructure at Hatchfield Farm, Newmarket.

The Secretary of State rejected an Inspector’s recommendation to grant permission. The challenge concerned the application of the presumption in favour of sustainable development under the National Planning Policy Framework, the treatment of an earlier decision concerning a larger development on the same site, the evidential basis for highway-safety concerns at the Rayes Lane horse crossing, and the interpretation of policy DM48 concerning the horseracing industry.

1. National policy. The Secretary of State was required to apply the National Planning Policy Framework where the development plan was silent or lacked relevant up-to-date housing policies, unless he gave reasons for departing from it. The paragraph 14 balance was distinct from the statutory balance under section 38(6) of the Planning and Compulsory Purchase Act 2004. Its outcome had to be treated as a material consideration in the section 38(6) exercise. The decision letter did not mention or implicitly apply that balance, although it was a significant issue identified by the Inspector. Ground 1 succeeded.
2. Consistency with the earlier decision. The Secretary of State’s earlier decision had accepted that a substantially larger development, generating a 15% traffic increase, could operate safely at the Rayes Lane crossing. The challenged decision treated a 5% increase as creating material additional risk. This was a stark and fundamental inconsistency concerning the same site and crossing. The Secretary of State had to acknowledge the earlier decision and explain the departure. His reliance on newer expert evidence did not cure the omission, since the essential point that thoroughbred horses could be skittish and be spooked had already been advanced at the earlier inquiry. Ground 2 succeeded.
3. Irrationality. The highway-safety conclusion was weak, but the court could not conclude that it was irrational in the public-law sense. Ground 3 failed.
4. Policy DM48. The court accepted that a risk of adverse perceptions among owners and investors could legally amount to a threat to the long-term viability of the horseracing industry. The Secretary of State was therefore entitled, as a matter of planning judgment, to adopt that interpretation. Ground 4 failed, subject to the unlawful treatment of the Rayes Lane issue.
5. The decision was quashed. The court found no reason to conclude that the outcome would necessarily have been the same had the errors on national policy and consistency not occurred.

This was a first-instance judicial review claim in the Administrative Court. The judgment does not state any prior appellate decision in the same proceedings.