Keep Chiswell Green v Secretary of State for Levelling Up, Housing and Communities & Ors

Parties to a planning appeal should present their whole case and the material on which they rely to the decision-maker. They ordinarily cannot reserve a new point or new evidence for a statutory challenge where it could have been raised during the appeal. This applies even where the new material might be significant or arguably an obviously material consideration.

A later document is a mandatory consideration only where legislation or policy requires it to be considered, or where it is so obviously material that failure to consider it would be irrational. The decision-maker may rationally decline to investigate emerging, untested plan-making evidence which was not relied upon by the parties and did not address the central issue in the appeal. The duty of sufficient inquiry requires only reasonable steps to inform the decision-maker.

The claimant, a local community group, sought statutory review under section 288 of the Town and Country Planning Act 1990 of the Secretary of State’s decisions allowing two conjoined appeals and granting outline planning permission for residential development in the Metropolitan Green Belt.

The appeals followed a public inquiry. The Inspector and Secretary of State relied on an earlier Green Belt review. After the inquiry closed, the Council published the Arup Green Belt Review, which superseded part of the earlier review and reached materially different site assessments. None of the parties asked the Secretary of State to consider it or supplied a copy before the decisions were made.

The central questions were whether the claimant could rely on the Arup Review for the first time in the High Court, whether it was an obviously material consideration, whether the Secretary of State owed a duty of sufficient inquiry, and whether adequate reasons were given.

1. Claim dismissed. The claimant could not rely on the Arup Review for the first time in the statutory review. The general rule is that parties to a planning appeal must place before the decision-maker the material on which they rely. The claimant knew that a new Green Belt review was imminent, but did not ask the Inspector or Secretary of State to consider it. Entertaining the point would have required reopening the inquiry, further evidence and submissions, new findings and a fresh planning balance.
2. The public interest in finality of planning proceedings justified applying the procedural bar identified in West v First Secretary of State and Mead Realisations Ltd v Secretary of State for Levelling Up, Housing and Communities. The claimant’s lack of professional representation did not provide a sufficient justification for departing from that principle.
3. In any event, the Arup Review was not a mandatory material consideration. Applying the principles in R (Friends of the Earth Ltd) v Heathrow Airport Ltd, it was a third-category consideration which the Secretary of State could rationally decline to take into account. It was emerging plan-making evidence, had not been independently examined, was not relied upon by the Council or claimant, and had not been supplied to the Secretary of State.
4. The Arup Review did not address the central appeal issue: whether Green Belt harm and other harm were clearly outweighed by the benefits so as to establish very special circumstances under paragraphs 152–153 of the National Planning Policy Framework. The Inspector had instead undertaken a detailed, case-specific assessment of the sites and Green Belt harm.
5. The second element of the Kides test was satisfied because the Secretary of State knew of the Arup Review. The first was not satisfied because the Review was not obviously material. The decision not to investigate it further was also rational under the Tameside duty, as described in R (Balajigari) v Secretary of State for the Home Department.
6. Ground 2 failed. The Secretary of State did not treat the Arup Review as a material consideration requiring reasons. His approach was sufficiently clear from the decision letter, and the claimant could not establish prejudice.