PLT Masthead 430

Comment and Analysis Masthead

The SoS and previous appeal decisions

RCJ portrait 146x219The Court of Appeal has upheld the quashing of a planning permission because of the Secretary of State's failure to take into account an appeal decision of his own. Heather Sargent highlights the key aspects of the ruling.

The Court of Appeal has dismissed the appeal in DLA Delivery Ltd v Baroness Cumberlege of Newick [2018] EWCA Civ 1305. Upholding the decision of the High Court to quash a planning permission granted by the Secretary of State on appeal for up to 50 dwellings in Newick, the Court of Appeal (Lindblom LJ, Moylan and Peter Jackson LJJ agreeing) held that the Secretary of State had erred in law in failing to take into account a recent appeal decision of his own, even though he had not been asked to do so.

The Court of Appeal also held that the mistake of fact made by the Secretary of State in treating the appeal site as falling entirely outside the 7km Ashdown Forest SPA and SAC protection zone had led him to determine the appeal in breach of article 6(3) of the Habitats Directive and regulation 68(3) of the Habitats regulations.

On the first issue, Lindblom LJ reasoned as follows at [34]:

"I would accept three general propositions, which I think accord with the basic principles referred to by Mann L.J. in North Wiltshire District Council and applied since in several decisions of this court, and which align with the judge’s conclusions in this case (in particular, in paragraphs 100 to 105 of his judgment). First, because consistency in planning decision-making is important, there will be cases in which it would be unreasonable for the Secretary of State not to have regard to a previous appeal decision bearing on the issues in the appeal he is considering. This may sometimes be so even though none of the parties has relied on the previous decision or brought it to the Secretary of State’s attention (paragraph 100). And it may be necessary in those circumstances, in the interests of fairness, to give the parties an opportunity to make further representations in the light of the previous decision.Secondly, the court should not attempt to prescribe or limit the circumstances in which a previous decision can be a material consideration. It may be material, for example, because it relates to the same site, or to the same or a similar form of development on another site to which the same policy of the development plan relates, or to the interpretation or application of a particular policy common to both cases (see paragraph 92 of Holgate J.’s judgment in St Albans City and District Council). Thirdly, the circumstances in which it can be unreasonable for the Secretary of State to fail to take into account a previous appeal decision that has not been brought to his notice by one of the parties will vary. But in tackling this question, it will be necessary for the court to consider whether the Secretary of State was actually aware, or ought to have been aware, of the previous decision and its significance for the appeal now being determined (paragraphs 100, 101 and 105 of the judgment). As the judge said, “[before] the close of the “adversarial” part of the proceedings, the Secretary of State and his inspectors can normally rely, not unreasonably, on participants to draw attention to any relevant decision[, but] that does not mean that they are never required to make further enquiries about any matter, including about other … decisions that may be significant” (paragraph 101)".

He concluded at [58]: "I therefore agree with the judge that the Secretary of State erred in the Newick appeal in failing to take into account and distinguish his own decision in the Ringmer appeal. As the judge said, aptly in my view, “[it] can only undermine public confidence in the operation of the development control system for there to be two decisions of the Secretary of State himself, issued from the same unit of his department … within 10 weeks of each other, reaching a different conclusion on whether or not a development plan policy is up-to-date without any reference to, or sufficient explanation in the later one[,] for the difference” (paragraph 122 of the judgment)".

On the second issue, Lindblom LJ held at [68]-[69] that:

"The inspector may have been led into error by the parties, but it is clear that he was in error, and so too was the Secretary of State. Part of the site is within the 7km “zone of influence”. Condition 7 does not prevent the erection of buildings on that land. No other restriction on the outline planning permission does so. It is possible that at the reserved matters stage the scheme submitted for approval would avoid siting buildings within the “zone of influence”. But the developer, whoever it is, would be free to bring forward a layout in which the 50 dwellings were differently arranged on the site, with one or more of them inside the 7km “zone of influence”.

The crucial point, however, as the judge recognized (in paragraph 136 of his judgment), is that the designation of the 7km “zone of influence”, to which Core Policy 10.3 applies, is the means by which the “precautionary principle” is given effect. It ensures that development, including housing development, will not adversely affect the integrity of the Ashdown Forest SPA and SAC. Regulation 68(3) does not provide that outline planning permission may be granted if the competent authority is satisfied that no development likely to affect the integrity of a European site is likely to be carried out, or would be carried out, under the permission. It provides that outline planning permission “must not be granted unless” the competent authority is “satisfied … that no [such] development … could be carried out …”. The relevant test here is stringent. It applies specifically to the granting of outline planning permission, not to the approval of reserved matters. It can, in principle, be satisfied by the imposition of a suitable condition. But its terms reflect the strict application of the “precautionary principle” that is required in a decision authorizing development (see, for example, the judgment of the Court of Justice of the European Union in Case C-258/11 Sweetman v An Bord Pleanala [2014] P.T.S.R. 1092, at paragraph 51)".

Heather Sargent is a barrister at Landmark Chambers. She acted for the successful respondents, instructed by DAC Beachcroft LLP.

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