Redrow Homes Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

In a planning statutory review, a clerical contradiction in a decision letter will not justify permission where the decision read as a whole shows the lawful approach and the decision-maker would necessarily have reached the same conclusion. A planning decision-maker has a broad discretion as to how to factor deficiencies in an emerging or adopted development plan into the planning balance. The decision-maker may reflect those matters through the weight given to housing provision rather than assign them separate weight. Describing a benefit as significant does not require the decision-maker to give it significant weight. Under rule 17(5)(b) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, post-inquiry material triggers notification only where it causes the Secretary of State to be disposed to disagree with the inspector’s recommendation. Relief under section 288(5) of the Town and Country Planning Act 1990 requires substantial prejudice.

Redrow Homes Limited renewed its application for permission to bring a statutory review under section 288 of the Town and Country Planning Act 1990. The challenge concerned the Secretary of State’s decision to dismiss an appeal against refusal of planning permission for a large residential and mixed-use development in Tring, Hertfordshire.

The grounds alleged errors concerning affordable housing policies, the operation of the presumption in favour of sustainable development, the treatment of failures to progress an up-to-date development plan, ecological benefits, and post-inquiry representations. Permission had previously been refused on the papers. The central question was whether any ground disclosed an arguable legal error warranting permission for statutory review.

1. Ground 1: The contradictory statement that the proposal conflicted with policies CS18 and CS19 was a clerical or drafting error. Reading the decision letter as a whole, the Secretary of State recognised that the proposal exceeded the affordable-housing requirement and treated affordable housing as a benefit. Applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041, the court was satisfied that he would necessarily have reached the same conclusion without the error. Permission was refused.
2. Grounds 2 and 3: The Secretary of State was plainly aware that the proposal exceeded the affordable-housing requirements. He expressly found that the five-year housing-land supply was lacking and triggered the presumption in favour of sustainable development under paragraph 11(d), footnote 8, of the National Planning Policy Framework. His agreement with the inspector’s assessment of policy weight showed that the relevant policies had been treated as out of date. The grounds were unarguable.
3. Ground 4: The Secretary of State took into account the Council’s failure to plan adequately for future housing needs and the delay to the emerging local plan. He was entitled to reflect that consideration through the weight given to market, affordable, custom and self-build, and extra-care housing, rather than give it separate weight. Attribution of planning weight was a matter for his judgment and was not irrational.
4. Ground 5: The inspector and Secretary of State distinguished between the significance of ecological benefits and the weight given to them in the overall balance. Moderate weight could lawfully be given to a benefit described as significant. NRS Saredon Aggregates Ltd v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2795 concerned a different error and did not assist.
5. Ground 6: Rule 17(5)(b) required notification only if the post-inquiry material caused the Secretary of State to be disposed to disagree with the inspector’s recommendation. He concluded that it did not affect his decision. The claimant therefore suffered no prejudice, and in any event could not show substantial prejudice under section 288(5) of the Town and Country Planning Act 1990. The renewed application for permission was refused. No disclosure order was made.

• High Court (Administrative Court): Permission to apply for statutory review had previously been refused on the papers. The renewed application was refused by Lang J.