Gladman Developments Ltd v Secretary of State for Communities And Local Government & Anor

Where a planning inspector has assessed a housing-land shortfall and the Secretary of State later relies on new evidence producing a different factual range, the Secretary of State must comply with Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. The obligation is continuing and applies where the new evidence is likely to form part of the decision-making process. The Secretary of State need not adopt a precise housing-supply figure, but the extent of any shortfall is a material consideration when assessing policy weight and undertaking the planning balance. The decision-maker bears the high onus of demonstrating that a procedural breach made no difference to the outcome. Where that cannot be shown, the decision must be quashed and reconsidered.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision dated 21 December 2016 dismissing its appeal against refusal of planning permission for up to 180 dwellings and associated development at Berry Hill, Gloucestershire.

An inspector had recommended allowing the appeal after finding a housing-land supply of approximately 3.73 years. The Secretary of State later considered material published on the local planning authority’s website and concluded that the supply was between 3.7 and 5 years. He did not refer the matter back to the parties before dismissing the appeal.

The central issues were whether this difference engaged Rule 17(5), whether the breach affected the outcome, and whether the Secretary of State had properly considered the extent of the housing shortfall in the planning balance.

1. The claim succeeded and the Secretary of State’s decision was quashed. The appeal was remitted for reconsideration.

2. Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 applied under both limbs. The Secretary of State had differed from the inspector on a matter of fact and had taken new evidence into account. The duty to notify the parties was continuing. Once the new evidence was incorporated into the final decision letter, the Secretary of State was required to invite further representations or a request to reopen the inquiry.

3. The rule is engaged where new evidence is likely to form part of the decision-making process. It need not be the sole reason for disagreeing with the inspector. The expression “disposed to disagree” imports a lower threshold. The rule does not apply where the Secretary of State has firmly concluded that the evidence will not be taken into account or is clearly immaterial.

4. A precise housing-supply figure is not required. Nevertheless, the extent and degree of any shortfall are relevant to the weight given to development-plan policies and to the benefits of additional housing in the overall planning balance. The approach in Crane v SSCLG [2015] EWHC 425 (Admin) and Phides Estates (Overseas) Ltd v SSCLG [2015] EWHC 827 (Admin) was accepted as correct on this issue.

5. The Secretary of State could not show that the breach made no difference. The range of 3.7 to 5 years was materially different from the inspector’s figure of 3.73 years, and the difference could have affected the weight given to the relevant policies and the final balance. The burden was on the Secretary of State to establish that the same decision would necessarily have been reached.

6. Alternatively, if the Secretary of State had not taken the extent of the shortfall into account, he would have failed to consider a relevant matter. That alternative ground also succeeded.

This was a first-instance statutory review. The Secretary of State had dismissed the planning appeal on 21 December 2016 after an inspector recommended that it be allowed.