"If regard is to be had to the development for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
“17.— Procedure after inquiry (1) After the close of an inquiry, the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and his recommendations or his reasons for not making any recommendations. ….. (4) When making his decision the Secretary of State may disregard any written representations, evidence or any other document received after the close of the inquiry. (5) If, after the close of an inquiry, the Secretary of State– (a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or (b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy), and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying in writing the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the reopening of the inquiry. (6) Those persons making written representations or requesting the inquiry to be re-opened under paragraph (5), shall ensure that such representations or requests are received by the Secretary of State within 3 weeks of the date of the Secretary of State's notification under that paragraph. (7) The Secretary of State may, as he thinks fit, cause an inquiry to be re-opened, and he shall do so if asked by the applicant or the local planning authority in the circumstances mentioned in paragraph (5) and within the period mentioned in paragraph (6); and where an inquiry is re-opened (whether by the same or a different inspector)– (a) the Secretary of State shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of the matters with respect to which further evidence is invited; and (b) paragraphs (3) to (8) of rule 10 shall apply as if the references to an inquiry were references to a re-opened inquiry.” (a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or (b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy), (a) the Secretary of State shall send to the persons entitled to appear at the inquiry who appeared at it a written statement of the matters with respect to which further evidence is invited; and (b) paragraphs (3) to (8) of rule 10 shall apply as if the references to an inquiry were references to a re-opened inquiry.”
“12. In the course of the appeals, the parties made submissions on the SKM Review which was published in two parts by Sinclair Knight Merz. The 1st Stage SKM Review was the ‘Green Belt Review Purposes Assessment’ Final Report 2013. The 2nd Stage SKM Review was the 'Green Belt Review Sites & Boundaries Study' Report 2014. 13. The 1st Stage SKM Review analysed the Green Belt of Dacorum Borough Council, St Albans City and District Council, and Welwyn Hatfield Borough Council. It did this by breaking down the Green Belt into ‘Strategic sub-areas’ for analysis. The Appeal Sites both fell within sub-area 'SA-S8 - Enclosed land at Chiswell Green Lane at Chiswell Green (GB25) ….. 14. The 1st Stage SKM Review recommended that eight strategic sub-areas be further reviewed and assessed in the 2nd Stage SKM Review. This included SA-S8. 15. The 2nd Stage SKM Review analysed S8 at Section 10. At Section 11.2 it ranked all 8 sub-areas depending on their suitability for Green Belt release and future development. S8 was ranked top …with a finding that it was “the most suitable site” for development. Appeal A Site was found to be the least sensitive part of the sub-Area 8 (Inspector's Report paragraph 542 (“IR/542”)). Appeal B Site was found to be more sensitive and it was not recommended for release from the Green Belt for housing (see IR/312 and IR/550). 16. The 1st and 2nd Stage SKM Reviews were part of the evidence base for the Council's emerging Local Plan in 2019 which was withdrawn at the invitation of the Examining Inspectors. The Examining Inspectors raised concerns about some of the methodology used in the 2nd Stage SKM Review. Therefore the Council decided to commission a new 2nd Stage review from Arup. The Inspector found that these concerns had no bearing on the issues in these appeals (IR/531).”
“Appeal A 534. The site is largely undeveloped and open at present, with few structures, notably the existing stable block to the northwest and an unoccupied dwelling to the northeast. As such, there would undoubtedly be a significant and permanent impact on openness in a spatial sense. The introduction of 391 dwellings, a school and associated works would introduce a great deal of built volume to the Green Belt. 535. There would also be significant harm to openness in a visual sense in that the development would be seen from surrounding properties, highways and public rights of way, albeit that areas of open space would also be delivered. Activity within the site would also increase greatly with the comings and goings of residents, visitors, school pupils and staff. [62, 325, 351, 380] 536. That said, the development would not become a prominent part of the wider Green Belt and would only be visually harmful in relatively close proximity to the site. It is visually contained by existing built form on the eastern side, and this partially wraps around the site to the north and south. To the east, is Miriam Lane, which follows the western boundary of the site with thick landscaping along much of its length. This leads to the former Butterfly World site where significant development exists, such as building slabs, earth bunds, fencing and other built form associated with the former use. Even bearing in mind that some structures and uses within the site are apparently unauthorised and may be removed, development is visible and provides a good degree of screening, along with a definitive boundary to the west of the site. [50-54, 59, 65, 73-75, 309, 316, 332, 334, 343, 354-360] 537. Nevertheless, it is clear that the development would result in significant harm to Green Belt openness and I attach this harm substantial weight. 538. So far as the Green Belt purposes are concerned, the first seeks to check the unrestricted sprawl of large built-up area. The proposed development would extend the urban edge of Chiswell Green, expanding the settlement into countryside. However, as I have described above, the site is relatively well contained by Miriam Lane, its landscaping (including some earth bunds) and the remaining development associated with Butterfly World, which is now closed. These defensible boundaries wud define the extent of the site and separate it from the wider countryside, minimising any perception of uncontrolled sprawl. There would be moderate harm to this Green Belt purpose. 539. The second purpose is to prevent neighbouring towns merging into one another. The development would extend the settlement edge of Chiswell Green, which is located in close proximity to St Albans. The urban edge would be brought marginally closer to Hemel Hempstead but the size of the site, in the context of the vast gap between St Albans and Hemel Hempstead, is such that there would be little contribution to any perceived merging of the towns. The harm to this purpose would be very limited. 540. The third purpose is to assist in safeguarding the countryside from encroachment. The development would obviously encroach on the countryside, albeit contained by Butterfly World and Miriam Lane. Having regard to the considerations I have set out above, the development would result in moderate harm to this purpose. 541. No party argues that there would be any harm to the remaining Green Belt purposes, as contained in the Framework. [68, 72-75, 331-342, 353-360] 542. It is notable that the Council’s GB Review found the part of sub-area S8, within which the appeal site falls, to be the least sensitive part of the sub-area. Nevertheless, the Appeal A scheme would result in definitional harm of the Green Belt, s well as harm to its openness and purposes. I attach substantial weight to this harm. [76-78, 267-273, 309, 361-363, 532].”
“Appeal B 543. The appeal site is again largely open and undeveloped, albeit with a modest agricultural style building close to Chiswell Green Lane. Appeal B proposes less development than Appeal A, but the 330 dwellings sought would nevertheless have a considerable and permanent impact on openness in both a spatial and visual sense. This would result from the volume of built form to be introduced and the visibility of buildings from surrounding properties, highways and public rights of way. Again, activity within the site would increase greatly. 544. Unlike Appeal A, more open and longer-range views towards the site are available and the development would be seen more readily in the context of the wider Green Belt from the west, including from public rights of way. Conversely, views from Chiswell Green in the immediate locality of the site would be curtailed or filtered to a large extent by the boundary hedgerows and other landscaping, which includes thick evergreen hedges along the north and east boundaries that would largely be retained. It is likely that the upper parts of the buildings would still be visible however, even after further landscaping the site. The fact that the site is separated from the edge of Chiswell Green by a thick hedgerow and an intervening paddock gives a strong perception that it is part of the countryside beyond the settlement edge. The established urban edge has little impact on the visual openness of the site, though houses on Cherry Hill and The croft are a notable backdrop from the west. 545. In light of the above, the development would result in substantial arm to Green Belt openness and I attach this harm substantial weight. 546. Having regard to the purposes of Green Belt, the development would significantly harm the first purpose. It would introduce development beyond the established settlement edge and would remain separated from built form on the edge of Chiswell Green by a paddock. It would, to some extent, have the appearance of unrestricted sprawl, clearly protruding into the wider rolling countryside. This appearance might be reduced if the intervening paddock were subsequently developed as KCG anticipate, but that cannot be guaranteed. Public right of way 21 would provide the only form of defensible boundary to the west of the site, with its established hedgerow and tree planting, through additional landscaping could be introduced to reinforce this. 547. The effect of the second Green Belt purpose would be similar to that for Appeal A. The development would protrude in the general direction of Hemel Hempstead but there is no evidence of a proliferation of development in the separating gap that leads to any meaningful perception of coalescence, even on an incremental basis. To the extent that the gap would be marginally reduced, very limited harm would result to the second purpose. 548. There is no disagreement between the parties that the third Green Belt purpose would also be harmed by the development, and having regard to my conclusions above, it is obvious that the development would encroach on the countryside. The quantum of development, its separation from the established settlement and visibility from the wider Green Belt are such that significant harm would result to the third purpose. 549. As with Appeal A, no party argues that there would be any harm to the remaining Green Belt purposes, as contained in the Framework. 550. The GB Review draws a distinction between the east and west parts of sub-area S8, nothing that the western area, with which Appeal B is located, is more sensitive. This accords with my own findings that the Green Belt impacts would be much greater from Appeal B. The development would result in definitional harm to the Green Belt, as well as harm to its openness and purposes. I attach substantial weight to this harm. [76-78, 267-273, 267-273, 309, 361-363, 532].”
“Overall, the harm by reason of inappropriateness, and any other harm, is very clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.”
“12. Secondly, the site south of Chiswell Green Lane is no longer “the top-performing candidate GB release site”
“…… I have consciously steered away from providing new evidence. However, paragraph 12 of Mr Parker's Statement makes reference (for the first time) to a Green Belt Review published by Arup in June 2023 (‘the Arup GBR’) that was not presented nor discussed at the Public Inquiry. The Arup GBR was prepared as part of the Council's emerging evidence base in support of their draft Regulation 18 Local Plan. This evidence base and emerging plan carried no material weight in the determination of this appeal. We highlight the following points in particular: • It was the subject of consultation and the consultation responses included vigorous objections to it. The Council's response to the consultation has not yet been published. • It has not been relied upon by the Council in the context of the present appeal. • It is inconsistent with the Council's evidence in this appeal (including concessions made in cross-examination). • Is not referred to or relied upon in the Council's response letter dated31st January 2024 which rightly invites the Secretary of State to ignore any new evidence outside the scope of DLUHC's request for comments on the implications of the revised NPPF and HDT results. In agreement with the Council, I therefore respectfully request that the DLUHC disregards the comments made by Mr Parker in paragraph 12 of his statement. If any reliance is to be placed upon those comments, the inquiry would need to be re-opened so that they could be the subject of cross-examination (which may also result in an application for costs). Reliance upon the Arup GBR without giving the Appellant the opportunity to cross-examine on it would be unlawful.”
“9. A list of other representations which have been received since the inquiry is also at Annex A. The Secretary of State is satisfied that the issues raised do not affect his decision, and no other new issues were raised in this correspondence to warrant further investigation or necessitate additional referrals back to parties. Copies of these letters may be obtained on request to the email address at the foot of the first page of this letter.”
"Green Belt 17. The Secretary of State agrees with the Inspector that both proposals represent inappropriate development in the Green Belt (IR528). For the reasons given in IR530-534, the Secretary of State agrees with the Inspector that the Green Belt Review is a material consideration relevant in considering Green Belt matters in the district, and that the relative suitability of strategic sub-area S8 (which both appeal sites fall within), as defined by the Green Belt Review, is an important consideration. 18. Appeal A: For the reasons given at IR534 the Secretary of State agrees that Appeal site A is largely undeveloped and open at present, and that the introduction of 391 dwellings, a school and associated works would introduce a great deal of built volume to the Green Belt. For the reasons given in IR535-542, the Secretary of State agrees with the Inspector that the Appeal A scheme would result in definitional harm to the Green Belt, as well as harm to its openness and purposes (moderate harm to checking unrestricted sprawl, very limited harm to preventing neighbouring towns merging into one another, and moderate harm to safeguarding the countryside from encroachment). Like the Inspector he attaches substantial weight to this harm. 19. Appeal B: For the reasons given at IR543 the Secretary of State agrees that Appeal site B is largely open and undeveloped, and that the 330 dwellings sought would have a considerable and permanent impact on openness in both a spatial and visual sense. The Secretary of State agrees with the Inspector for the reasons given in IR544 that the development would result in substantial harm to Green Belt openness. For the reasons given at IR546-548 the Secretary of State agrees with the Inspector that there would be significant harm to the purpose of checking unrestricted sprawl, very limited harm to preventing neighbouring towns merging into one another, and significant harm to safeguarding the countryside from encroachment. Like the Inspector at IR550, the Secretary of State concludes that the development would result in definitional harm to the Green Belt, as well as harm to its openness and purposes, and he attaches substantial weight to this harm. 20. Both Appeals: The Secretary of State has gone on to apply national Green Belt policy. Paragraphs 152-153 (formerly 147-148) of the Framework state that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. 'Very special circumstances' will not exist unless the potential harm to the Green Belt and any other harm resulting from the proposal, is clearly outweighed by other considerations. The Secretary of State has gone on to consider these matters. His conclusion on whether very special circumstances exist is set out in para 42 below."
“38. Appeal A: Weighing in favour of the proposal is the provision of housing which carries very substantial weight; the provision of land for a primary school which carries significant weight; economic benefits which carry moderate weight; open space/recreation provision which carries limited weight; BNG provision which carries limited weight; and improved bus/cycleway provision which also carries limited weight. 39. Appeal A: Weighing against the proposal is the harm to the Green Belt from inappropriateness, harm to openness, and harm to three of the purposes of the Green Belt, which carries substantial weight. Landscape and visual harm, and the loss of BMV land each carry limited weight, and the impact on air quality which carries very limited weight. 40. Appeal B: Weighing in favour or Appeal B is the provision of 100% affordable housing which carries very substantial weight; economic benefits which carry moderate weight; open space/recreation provision which carries limited weight; BNG provision which carried limited weight; and improved bus/cycleway provision which also carries limited weight. 41. Appeal B: Weighing against Appeal B is the harm to the Green Belt from inappropriateness, harm to openness, and harm to three of the purposes of the Green Belt, which carries substantial weight. Landscape and visual harm carries significant weight; the loss of BMV land carries limited weight; and the impact on air quality which carries very limited weight. 42. The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. He considers that they are, and therefore very special circumstances exist to justify permitting the development. As such, the proposed development accords with Policy S1 of the St Stephen Parish Neighbourhood Plan 2019-2036 and Policy 1 of the St Albans District Local Plan Review 1994, and national planning policy on Green Belt.”
“67. It is clear from Mead, at [178] and [179], that these principles are to be applied even where the new material is significant, could have been an “obviously material consideration” for which reasons were required and could have affected the outcome. The Court is applying a preliminary procedural bar, not making a determination on the merits of the new material. For this reason, the Claimant is mistaken in submitting that the West/Mead principles are not applicable, and the approach in the Kides line of cases is to be preferred.”
“78. In this case, the Claimant is not in breach of an express procedural requirement in the CPR but it has failed, without good reason, to comply with the fundamental obligation on parties to a planning appeal to place before the decision maker the material on which they rely, and not to raise points for the first time in a High Court challenge. It is commonplace for parties to be unrepresented in planning appeals, and planning procedures and hearings are arguably easier for unrepresented parties to navigate than court proceedings, as they are more informal. The West/Mead principles have been applied to unrepresented claimants: e.g. R (Akhtar) v Secretary of State for Communities and Local Government[2017] EWHC 1840 (Admin) . 79. The Claimant's claim, if successful, will have the following consequences: i) The Inquiry would have to be re-opened. ii) The Inspector would have to receive further evidence, and, as the Second Defendant indicated in its letter of16 February 2024 , there would have to be an opportunity for cross-examination. Further submissions would have to be made. iii) The Inspector would have to make new findings and evaluations, on the basis that the Arup Review had superseded the 2nd Stage SKM Review, and strike the overall planning balance, in a revised IR. iv) The First Defendant would have to re-make his decision, on the basis of the revised IR, and the Inspector's recommendations, and issue a revised DL. v) Alternatively, the parties may contend that a fresh appeal process with a new Inspector is required, in the interests of fairness.” ii) The Inspector would have to receive further evidence, and, as the Second Defendant indicated in its letter of16 February 2024 , there would have to be an opportunity for cross-examination. Further submissions would have to be made. iii) The Inspector would have to make new findings and evaluations, on the basis that the Arup Review had superseded the 2nd Stage SKM Review, and strike the overall planning balance, in a revised IR. iv) The First Defendant would have to re-make his decision, on the basis of the revised IR, and the Inspector's recommendations, and issue a revised DL. v) Alternatively, the parties may contend that a fresh appeal process with a new Inspector is required, in the interests of fairness.”
“80. As the Court held in Mead, resources for planning inquiries are finite and there is a strong public interest in the finality of proceedings. No proper justification has been advanced by the Claimant for the Court to exercise its discretion exceptionally to consider new evidence and grounds which were not raised or relied upon by the Claimant in the appeal to the First Defendant.”
“87. The Arup Review was not relied upon by the Claimant, or the Council (by whom it was commissioned), or even supplied to the First Defendant. 88. The Arup Review was at an early stage of the emerging local plan process, and consultation was ongoing. Unlike the SKM Review, it had not been tested by independent examination. The value of the 1st Stage SKM Review was not challenged. The Inspector found that the concerns about methodology in the 2nd Stage SKM Review raised by the Examining Inspectors had no bearing on these appeals (IR/531). 89. The Claimant emphasised that the Arup Review did not recommend either Appeal Site for release from the Green Belt, whereas the SKM Review found sub-area S8 to be the most suitable area for release, with Appeal A Site located in the least sensitive part of the area. It found that Appeal B Site was located in a more sensitive part, and therefore it was not recommended for release. However, these changes in the Green Belt assessment were primarily of significance to the preparation of the emerging local plan, not to the appeals, since the Inspector and the First Defendant found that there would be harm to the Green Belt at both sites, and they attached substantial weight to that harm. The Arup Review did not address the main issue identified by the Inspector and the First Defendant, namely, whether the harm by reason of inappropriateness, and any other harm, was clearly outweighed by other considerations, in particular housing, so as to amount to the very special circumstances necessary to justify development (IR/525(e), DL/16). 90. The Inspector found that the conclusions in the SKM Review could not be “directly applied to the appeal proposals” (IR/531; accepted at DL/17). Whilst the Inspector had regard to the SKM Review, he made his own assessment of the suitability of the appeal sites for the proposed development, and came to his own judgment, at IR/527 – 612. As a result, the First Defendant had the benefit of a detailed report from the Inspector who had considered the Green Belt issues following a site inspection, oral evidence, written evidence and submissions. This case-specific consideration removed any need to consider the higher-level and more generalised analysis in the Arup Review, in addition to the SKM Review which had already been taken into account. 91. For these reasons, the Arup Review was not "obviously material", that is to say, a mandatory material consideration which the First Defendant was required by law to take into account, and therefore the first element of the Kides test was not met. 92. I accept that the second element of the Kides test was met as the First Defendant was aware of the Arup Review because it was raised in the post-Inquiry correspondence.”
“It was a recommendation which, if accepted by the city council, as it now has been, could lead to the local plan containing an allocation of the site as open space with which the proposed development would be totally inconsistent. In In re Findlay [1985] A.C. 318, 333–334, Lord Scarman, in a speech with which the other members of the House agreed, quoted with approval two short passages from the judgment of Cooke J. in CREEDNZ Inc. v. Governor-General [1981] 1 N.Z.L.R. 172, 183. The second passage included the observation that, though the relevant statute does not refer expressly to a particular consideration, nevertheless “there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers… would not be in accordance with the intention of the Act.”
“On the one hand, it would have been a simple matter for the city council to draw the attention of Mr Rollinson or somebody else in the decision-making branch of the Department of the Environment, the “open space” recommendation, and perhaps to ask for the appeal decision to be deferred until the city council had decided whether to accept the recommendation. The fact that the city council failed to do so is not the fault of the Secretary of State. On the other hand, the appeal inspector did report that there had been an objection relating to the field at the local plan inquiry, and it would have been equally easy for Mr. Rollinson, or one of his colleagues, to have studied the local plan inspector's report to ascertain what he recommended in relation to this site, and then to take that recommendation into account in some way. On balance I conclude that the failure of those who were deciding the appeal to take these simple steps resulted in the Secretary of State failing to comply with his duty to have regard to this material consideration.”
“Did the Secretary of State for Communities and Local Government, when determining an appeal against the refusal of planning permission for a development of housing, err in law in failing to take into account a recent decision of his own – even though he had not been asked to do so?”
“31. In these proceedings we are concerned with a previous appeal decision of the Secretary of State issued after the close of the inquiry in the case under consideration, and not relied upon by any of the parties in further representations to the Secretary of State before he made the challenged decision. How should the court approach such a case? 32. Rightly in my view, the judge rejected a submission made to him on behalf of DLA Delivery that, as a matter of law, when the previous decision in question has not been placed before the Secretary of State by one or more of the parties, he is never obliged to have regard to it. There can be no “absolute rule” to that effect—as the judge demonstrated (in paras 86–106 of his judgment), having regard to a decision-maker's general obligation to take reasonable steps to acquaint himself with the relevant information to enable him to decide relevant questions correctly, an obligation emphasised by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council[1977] AC 1014 , 1065. As the judge concluded, the relevant authorities do not establish so rigid a principle: see, in particular, the first instance judgments in St Albans City and District Council v Secretary of State for Communities and Local Government[2015] EWHC 655 (Admin) at [88]–[101], Cotswold District Council v Secretary of State for Communities and Local Government[2013] EWHC 3719 (Admin) at [61], Hounslow London Borough Council v Secretary of State for Communities and Local Government[2009] EWHC 1055 (Admin) at [13]–[19] and Grantchester Retail Parks plc v Secretary of State for Transport, Local Government and the Regions[2003] EWHC 92 (Admin) at [26]–[28]. And the decisions of the Court of Appeal in The Bath Society v Secretary of State for the Environment[1991] 1 WLR 1303 and R (Connolly) v Havering London Borough Council[2010] 2 P & CR 1 seem incompatible with it. In Connolly’s case the judge at first instance had quashed an inspector's decision on the ground of a mistake of fact concerning the existence of a relevant previous decision to which the local planning authority had failed to refer. The judge's decision was upheld by this court. In The Bath Society case[1991] 1 WLR 1303 the Secretary of State allowed an appeal and granted planning permission for a housing development without taking into account the recommendation in the local plan inspector’s report that the land should be allocated as open space. The appeal inspector had been unaware of the local plan inspector’s report; the Secretary of State had received it, but not in connection with the appeal. Glidewell LJ concluded, at p 1313c-d, that he had erred in “failing to comply with his duty to have regard to this material consideration”.”
“88. The obligation not to act unreasonably in reaching a decision is one imposed on the decision-maker. When considering the discharge of that obligation in the context of a planning appeal, however, there is a difference in practice between the position that applies until the end of an inquiry or hearing or the final submission of written representations and the position that applies after that and until a decision is issued. 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. That is because the prescribed procedures for the conduct of the appeal are designed to ensure all the information that the participants consider may be relevant when determining the appeal is provided by them by that stage. It is unlikely that they may all omit to refer to something that no reasonable decision-maker would fail to take into account. Although the prescribed procedures that apply after the close of the “adversarial” part of the procedure do not necessarily preclude the submission of further relevant information, they are not designed to secure that the participants provide it. In that situation further steps may reasonably be required to be taken by the Secretary of State or one of his inspectors depending on the circumstances.”
“34. I would accept three general propositions, which I think accord with the basic principles referred to by Mann LJ in the North Wiltshire District Council case 65 P & CR 137 and applied since in several decisions of this court, and which align with the judge’s conclusions in this case (in particular, at[2017] PTSR 1513 , paras 100–105). 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: para 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 para 92 of Holgate J’s judgment in the St Albans City and District Council case[2015] EWHC 655 . 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: paras 100, 101 and 105 of the judgment. As the judge said at para 101: “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 inquiries about any matter, including about other … decisions that may be significant”.” “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 inquiries about any matter, including about other … decisions that may be significant”.”
“178. I can see that if Redrow had submitted to the inspector that there was a substantial need for housing which could not be met entirely on sequentially preferable sites (and even more so in the next five years), so that additional sites with a similar or worse flood risk would need to be developed, that would be a significant factor to be addressed in the overall planning balance. It could reduce the weight to be given to the failure to satisfy the sequential test. Here the inspector gave that failure “very substantial weight” (DL 100). It would have been arguable that the flood risk implications of satisfying the unmet need for housing land was an “obviously material consideration”, such that it was irrational for the inspector not to have taken it into account (R (Friends of the EarthLtd) v Secretary of State for Transport[2021] PTSR 190 , paras 116–120). Alternatively, it could have been said that there was a failure to comply with the duty to give reasons in relation to a “principal important controversial issue” between the parties. 179. The problem faced by Redrow is that, as Mr Simons accepted, this argument was not put before the inspector. Redrow did not consider it to be material, let alone obviously material. It was not raised as a substantial issue between the parties. The inspector cannot be criticised for acting irrationally, or for failing to give reasons, in relation to an argument of this kind which the claimant did not see fit to rely upon at any stage in its appeal. Ground 3 must therefore be rejected for this reason alone. 180. There is also an objection to the raising of a new point of this kind in a statutory review in the High Court. If Redrow had raised at the public inquiry the point now advanced under ground 3, HBC and any other participant would have had an opportunity to adduce evidence if thought appropriate, or, at the very least, to make submissions. Just as important is the point that the matter could have been addressed in a single appeal process. The inspector would have been able to make any additional findings of fact, to evaluate the weight to be given to the outcome of the sequential test and to strike the overall planning balance, taking into account Redrow's additional point as part of its entire case. 181. If the court were to quash an inspector's decision because of a new point of this kind, it would probably be necessary for the appeal process to be repeated in its entirety or in large part. At the very least, the same inspector, or a new inspector, would have to receive fresh submissions and prepare a new decision letter and evaluate the various policy and planning considerations all over again. The general principle is that new evidence and/or new submissions should not be entertained as a basis for quashing an inspector's decision if this would mean an inspector would have to make further findings of fact and/or reach a new planning judgment (see for example Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions[2017] PTSR 1126 , para 15). 182. As in civil proceedings more generally, resources for planning inquiries and hearings are finite and need to be distributed efficiently between all parties seeking to have planning issues resolved. There is therefore a strong public interest in the finality of such proceedings. Parties are generally expected to bring forward their whole case when a matter is heard and determined. No proper justification has been advanced by Redrow for the court to exercise its discretion exceptionally to entertain a new point which could have been, but was not, raised before the inspector.”
“116. As it transpired, very little divided the parties under this ground. The basic legal approach is agreed. A useful summation of the law was given by Simon Brown LJ in R v Somerset County Council, Ex p Fewings[1995] 1 WLR 1037 , 1049, in which he identified three categories of consideration, as follows: “the judge speaks of a ‘decision-maker who fails to take account of all and only those considerations material to his task’. It is important to bear in mind, however … that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process.” 117. The three categories of consideration were identified by Cooke J in the New Zealand Court of Appeal in CREEDNZ Inc v Governor General[1981] NZLR 172 , 183: “What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.”
“there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by [the public authority] … would not be in accordance with the intention of the Act.” 119. As the Court of Appeal correctly held in Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government[2018] PTSR 2063 , paras 20–26, in line with these other authorities, the test whether a consideration falling within the third category is “so obviously material” that it must be taken into account is the familiar Wednesbury irrationality test ( Associated Provincial Picture Houses Ltd v Wednesbury Corpn[1948] 1 KB 223 ; Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374 , 410–411, per Lord Diplock). 120. It is possible to subdivide the third category of consideration into two types of case. First, a decision-maker may not advert at all to a particular consideration falling within that category. In such a case, unless the consideration is obviously material according to the Wednesbury irrationality test, the decision is not affected by any unlawfulness. Lord Bingham deals with such a case in Corner House Research at para 40. There is no obligation on a decision-maker to work through every consideration which might conceivably be regarded as potentially relevant to the decision they have to take and positively decide to discount it in the exercise of their discretion. 121. Secondly, a decision-maker may in fact turn their mind to a particular consideration falling within the third category, but decide to give the consideration no weight. As we explain below, this is what happened in the present case. The question again is whether the decision-maker acts rationally in doing so. Lord Brown deals with a case of this sort in Hurst (see para 59). This shades into a cognate principle of public law, that in normal circumstances the weight to be given to a particular consideration is a matter for the decision-maker, and this includes that a decision-maker might (subject to the test of rationality) lawfully decide to give a consideration no weight: see, in the planning context, Tesco Stores Ltd v Secretary of State for the Environment[1995] 1 WLR 759 , 780 (Lord Hoffmann). “the judge speaks of a ‘decision-maker who fails to take account of all and only those considerations material to his task’. It is important to bear in mind, however … that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process.” “What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.” “there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by [the public authority] … would not be in accordance with the intention of the Act.”