DLA Delivery Ltd v Baroness Cumberlege of Newick & Anor (Rev 1)

A decision-maker must take account of a consideration not identified by statute where it is so obviously material that no reasonable decision-maker would omit it. In planning appeals, a recent previous decision may meet that standard even where no party has drawn it to the Secretary of State’s attention.

Consistency is especially important where closely similar recovered appeals concern the same development-plan policy. A materially different later approach requires a clear explanation. Further, under Conservation of Habitats and Species Regulations 2010, regulation 68(3), outline permission cannot be granted unless conditions or other restrictions ensure that development harmful to a European site could not be carried out under the permission.

DLA Delivery Ltd obtained outline planning permission on appeal for up to 50 dwellings at Mitchelswood Farm, Newick. The Secretary of State accepted that saved Policy CT1 of the Lewes District Local Plan was out of date and applied the presumption in favour of sustainable development.

The respondents successfully challenged that decision under Town and Country Planning Act 1990, section 288. The Administrative Court quashed the permission in [2017] EWHC 2057 (Admin). It held that the Secretary of State had failed to consider his recent contrary decision in the Ringmer appeal and had erred concerning the part of the site within the Ashdown Forest 7km zone of influence.

The developer appealed. The central issues were whether the earlier decision was an unconsidered material consideration and whether the outline permission complied with regulation 68(3) of the Habitats Regulations.

1. Appeal dismissed. Lindblom LJ, with whom Moylan and Peter Jackson LJJ agreed, upheld the quashing of the outline planning permission.

2. The material-consideration inquiry is whether the matter was so obviously material that no reasonable decision-maker would have failed to take it into account. That formulation and the Wednesbury formulation express the same legal test.

3. Previous planning appeal decisions are capable of being material because consistency promotes fairness and public confidence. There is no absolute rule that the Secretary of State need only consider decisions brought forward by the parties. Whether a decision not so raised must be considered depends on the facts, including whether the Secretary of State knew, or ought reasonably to have known, of it and of its significance.

4. The Ringmer decision was obviously material. Both cases concerned similar housing schemes outside planning boundaries in the same district, under the same district-wide Policy CT1. Both had been recovered for the same reason and proceeded concurrently. The Secretary of State’s contrary, unqualified conclusions on whether Policy CT1 was up to date were irreconcilable. He was therefore obliged to inform himself of the Ringmer decision, have regard to it, and explain any departure. The failure was an error of law requiring the Newick decision to be quashed.

5. Part of the appeal site lay within the 7km zone of influence. The condition imposed did not prevent buildings being erected there. Regulation 68(3) of the Conservation of Habitats and Species Regulations 2010 requires the competent authority to be satisfied that no development likely adversely to affect the integrity of the European site could be carried out under an outline permission. A possibility that later reserved-matters approval might avoid harmful development was insufficient. The factual error therefore also caused a breach of article 6(3) of the Habitats Directive and regulation 68(3).

6. The court also refused the developer’s late applications to adduce a unilateral undertaking. The evidence could and should have been produced below, and it could not have altered the result.

• Court of Appeal (Civil Division): Dismissed the developer’s appeal and upheld the quashing of the outline planning permission: [2018] EWCA Civ 1305 .
• Administrative Court (Planning Court): Allowed the respondents’ challenge under section 288 of the Town and Country Planning Act 1990 and quashed the Secretary of State’s decision: [2017] EWHC 2057 (Admin) .