Dr Caroline Rye v Secretary of State for Levelling Up, Housing and Communities & Ors

A planning decision may be quashed for material error of fact where the decision-maker misunderstood an existing, objectively verifiable fact, the claimant was not responsible for the mistake, and the mistake materially influenced the decision. The error need not be decisive.

Although a planning inspector need not address every item of evidence or argument, the decision must be read as a whole. A court cannot uphold the decision on the basis that the outcome would probably have been the same where the mistake goes to the heart of the planning judgment and it is not highly likely that the outcome would have been substantially different.

The claimant brought a statutory review under section 288 of the Town and Country Planning Act 1990, challenging a planning inspector’s decision allowing an appeal and granting permission for redevelopment of The Queens Hotel in the South Downs National Park.

The challenge alleged that the inspector mistakenly believed that mature trees shown as retained in the appeal documents were still present, although they had been felled before the site visit. The Secretary of State consented to quashing on that ground, but the developer continued to contest the claim. The issue was whether the alleged factual mistake was established and materially affected the decision.

1. The claim succeeded and the planning permission was quashed. The Secretary of State’s consent to the order did not determine the issue; the court reached its own conclusion on the evidence and the decision letter.
2. Planning decisions are construed reasonably flexibly. An inspector need not refer to every item of evidence or every material consideration. The decision letter must, however, be read as a whole and must reveal a lawful consideration of the material issues. Bloor Homes East Midlands Ltd and Bolton MDC were applied in that respect.
3. The four criteria in E v Secretary of State for the Home Department were satisfied: there was a mistake as to an existing fact; the fact was objectively verifiable and uncontentious; the claimant was not responsible for the mistake; and the mistake played a material, though not necessarily decisive, part in the decision. The approach had been applied to statutory planning challenges in Kensington and Chelsea RLBC and Wainhomes (North-West) Ltd.
4. The inspector’s statement that trees at the rear would be retained, together with the condition requiring protection of retained trees by reference to the Tree Protection Plan, showed that the assessment proceeded on the mistaken basis that the felled trees remained. Replacement trees did not amount to retention of the original trees.
5. The mistake materially affected the assessment of character and appearance. The inspector relied on the retained trees continuing to form the backdrop to the development and relied on that conclusion in finding that the Conservation Area would be preserved.
6. The court could not conclude that the outcome would have been substantially the same absent the error. The mistake went to the heart of the planning judgment, so the decision had to be quashed. The parties were directed to draw up an appropriate order for approval.

The judgment describes a first-instance statutory review. The claim was issued on 11 January 2023. On 21 June 2023, Upper Tribunal Judge Cooke, sitting as a High Court judge, granted permission on ground 1 and refused permission on ground 2. The Secretary of State later consented to quashing, while the developer contested the claim. The Administrative Court independently determined the legality of the decision and quashed the planning permission.