Wiltshire Council v Secretary of State for Housing, Communities and Local Government & Anor

A lawful planning decision is assessed by reference to the facts and law existing when it was made. A subsequent event cannot retrospectively convert it into an unlawful decision or establish a mistake of fact by the decision-maker. Fresh evidence may be admitted on judicial review in recognised circumstances, but that principle does not permit the court to reopen a planning decision because circumstances later change. A different result may follow where the statutory scheme imposes a continuing duty to review the decision. Where a planning permission and listed building consent contain conditions governing implementation, later difficulties should ordinarily be addressed through the statutory planning procedures. The court should not develop private-law doctrines to produce a fairer outcome where the planning code covers the situation.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of an inspector’s decision allowing the second defendant’s appeal against refusal of outline planning permission for development at Old Sarum Airfield.

The inspector had treated the restoration of a Grade II* listed hangar as a principal heritage benefit and imposed planning condition 17 restricting occupation of dwellings until specified restoration works were completed. Eight days after the decision, the hangar was extensively damaged by fire. Subsequent investigations did not establish that the fire was deliberate, and further surveys indicated that restoration remained possible, although the estimated cost increased.

The claimant argued that the fire created a material mistake of fact and external injustice. The central issues were whether the court could take account of the supervening event on statutory review and whether the planning permission had thereby been vitiated.

1. Ground 1 dismissed. Section 288 of the Town and Country Planning Act 1990 requires the claimant to establish a public-law error in the decision under challenge. The inspector applied the law correctly to the facts existing when the decision was made. The later fire did not retrospectively make that decision unlawful or demonstrate that the inspector had misunderstood an established fact.
2. The principles concerning fresh evidence and mistake of fact did not assist. E v Secretary of State for the Home Department [2004] EWCA Civ 49 concerned an existing fact or evidence available before the challenged decision. It did not permit review based on a subsequent event. The authorities concerning fresh evidence were materially distinguishable on that basis.
3. Launder [1997] 1 WLR 839 was distinguishable because the extradition legislation imposed a continuing duty to keep the decision under review. The planning scheme contained no comparable duty, and the inspector was functus officio once the appeal decision had been made. Convention rights were not engaged.
4. Ground 2 dismissed. The fire did not create external injustice or unfairness vitiating the decision. The planning permission and listed building consent governed implementation. Condition 17 prevented occupation of the relevant housing until the required hangar repairs were completed. Any proposed variation would require an application under section 73 of the Town and Country Planning Act 1990 or a fresh planning application. The evidence showed, at least prima facie, that restoration remained possible, and it was premature to conclude that increased costs made the permission unimplementable.
5. The court applied the principle in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 that private-law principles should not be introduced into the statutory planning code where the legislation covers the situation.
6. The statutory review claim was dismissed. The claimant agreed to pay the first defendant’s costs. A separate costs order was made in favour of the second defendant because its separate representation was reasonably required, it addressed issues not covered by the first defendant, and its evidence was essential to the court’s determination. Detailed assessment was ordered if the costs could not be agreed.

First-instance statutory review in the High Court (Planning Court). Permission to bring the claim was granted on the papers by Kerr J on 5 October 2025. The claim was dismissed by Mrs Justice Lang DBE on 3 March 2026.