Baroness Cumberlege of Newick & Anor v Secretary of State for Communities And Local Government & Anor

A planning decision may be unlawful where a matter capable of being material was ignored and no reasonable decision-maker would have failed to take it into account in the circumstances. Inconsistency between decisions may make a previous decision material, particularly where both decisions concern the same policy and were made by the Secretary of State. The decision-maker must take reasonable steps to identify relevant earlier decisions and explain any departure from them. For outline planning permission affecting a European site, it must be impossible for development likely adversely to affect the site’s integrity to be carried out under the permission. The possibility that reserved matters permission would later be refused is insufficient. A planning permission granted in breach of these requirements should ordinarily be quashed.

The claimants applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision allowing an appeal and granting conditional outline planning permission for up to 50 dwellings at Mitchelswood Farm, Newick.

They contended that the Secretary of State had unlawfully failed to consider his earlier Ringmer decision, which treated saved Policy CT1 as up-to-date, and had erred concerning the relationship between the site and the 7km zone protecting the Ashdown Forest SPA and SAC. The Secretary of State conceded the first ground. The court also considered whether the outline permission complied with regulation 68(3) of the Conservation of Habitats and Species Regulations 2010.

1. Failure to consider a material matter. Where an enactment does not expressly or impliedly require consideration of a matter, the decision may nevertheless be unlawful if no reasonable decision-maker would have failed to take it into account in the circumstances. The less precise formulation that a matter must be “so obviously material” was rejected as unhelpful and potentially misleading. The court must also consider the matter’s likely availability and the steps reasonably required to obtain it.
2. Consistency in planning decisions. There is a public interest in reasonable consistency in the exercise of administrative discretion. Previous planning decisions may therefore be material. The Secretary of State and inspectors are not deemed to know every earlier decision, but the Secretary of State’s obligation may be more stringent where his own recovered appeals raise issues with wider ramifications for planning control.
3. Application to the Ringmer decision. No reasonable decision-maker would have failed to take reasonable steps to identify the Secretary of State’s recent Ringmer decision. It concerned the same district, the same recovered-appeal context and the same policy. The Newick decision reached an apparently inconsistent conclusion on whether Policy CT1 was up-to-date and whether the NPPF “tilted balance” applied. The Secretary of State was required to consider the Ringmer reasoning and explain any different conclusion. His failure to do so was unlawful.
4. Ashdown Forest. Part of the appeal site lay within the 7km zone. Under regulation 68(3) of the Conservation of Habitats and Species Regulations 2010, outline permission could not be granted unless the authority was satisfied that no development likely adversely to affect the integrity of the European site could be carried out under the permission. It was insufficient that housing might be placed outside the zone or that reserved matters might later be refused. The ecological condition imposed did not secure the statutory result.
5. Relief. The decision was outside the powers of the Town and Country Planning Act 1990. The court declined to substitute a declaration or withhold relief on grounds of organisational fault or fairness to the developer. The planning permission was quashed.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The Secretary of State’s recovered-appeal decision granting outline planning permission was quashed.