The Mayor of London v the Secretary of State for Housing, Communities And Local Government & Ors

In a statutory planning review, a decision-maker may depart from an agreed statement of common ground, provided the affected party had a fair opportunity to address the issue and substantial prejudice is shown before relief is granted.

In applying Green Belt-equivalent policy to Metropolitan Open Land, harm caused by inappropriate development, harm to openness and other resulting harm must be considered in the very special circumstances balance. The court reads planning reasons substantively and flexibly, rather than treating their structure as determinative.

A full costs award requires unreasonable behaviour causing unnecessary or wasted expense across the relevant appeal process. Where the reasoning supports only a partial award, the decision must be quashed.

The Mayor challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision allowing Harrow School’s planning appeal and granting permission for substantial redevelopment at Harrow School. The challenge concerned a proposed sports building in Metropolitan Open Land, heritage impacts, the treatment of an agreed statement of common ground, and the very special circumstances balance.

The Mayor also challenged the Secretary of State’s order requiring him to pay the School’s inquiry costs. The Secretary of State had accepted an Inspector’s conclusions that the Mayor had acted unreasonably in several respects and had made a full award of costs.

1. Planning appeal. The claim challenging the grant of planning permission was dismissed. The Inspector was not bound by the statement of common ground. He could reach his own view, provided the parties had a fair opportunity to comment. Relevant considerations included whether the issue had been raised during the inquiry, whether departure was reasonably foreseeable, and the importance of the issue. The Mayor had not shown substantial prejudice. The School had resiled from the relevant agreement during the inquiry, and the Mayor could have sought further evidence or recalled witnesses.
2. The Secretary of State’s reasoning was legally adequate. The London Plan gave Metropolitan Open Land the same protection as Green Belt land. The relevant balance included harm by reason of inappropriate development, harm to openness and any other harm resulting from the proposal. The Secretary of State’s conclusion that the proposal caused less than substantial heritage harm did not mean that the harm disappeared merely because public benefits outweighed it under paragraph 196 of the NPPF.
3. The decision letter had to be read as a whole and with reasonable flexibility. Its structure did not establish that heritage harm had been excluded from the very special circumstances balance. The Secretary of State had addressed heritage harm, the relevant benefits and the overall planning balance. In any event, it was inevitable that the same decision would have been reached even if heritage harm had expressly been added to that balance.
4. Costs appeal. The claim challenging the costs order was allowed and the order was quashed. A costs award requires unreasonable behaviour which directly causes unnecessary or wasted expense. The Inspector’s findings supported, at most, a partial award concerning alternative sites and possibly other identified matters. They did not justify treating the whole appeal or inquiry as wasted, particularly where the Inspector accepted that the Mayor had reasonably explained the central objection and rejected the contention that permission should clearly have been granted.
5. The Inspector’s reasoning contained a fundamental gap and internal contradiction. The Secretary of State’s acceptance of that reasoning could not be saved by the principle that relief may be withheld where the outcome was inevitable. The costs decision required reconsideration, preferably by a different decision-making team.

The judgment records that the Secretary of State recovered Harrow School’s planning appeal for his own determination and allowed it on 31 October 2019. The present proceedings were statutory reviews of that decision and the associated costs order.