A recent High Court judgment considered the sometime murky question of whether ministerial statements amount to material considerations in the determination of planning decisions. Suzan Yildiz and Adam Baker consider the relevant practice points raised for practitioners.
In Oxford Diocesan Board of Finance v SoS for Communities and Local Government and Wokingham B.C., the claimant (promoting a residential development) applied under section 288 of the Town and Country Planning Act 1990 to quash a decision of the First Defendant, the Secretary of State for Communities and Local Government.
The latter had upheld the decision of his Inspector which dismissed the claimant's appeal against refusal of planning permission by the second defendant (Wokingham Borough Council) for a residential development in Shinfield, Berkshire (the "Site").
The claimant's statutory challenge to the High Court proceeded on no less than six grounds. This article is concerned with the first and only successful ground, namely the failure of the Secretary of State to consider a ministerial statement as a material consideration.
It is opportune to recall at this stage that the statutory test under section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the decision maker to determine planning applications in accordance with the development plan unless material considerations dictate otherwise. It is a settled principle of planning law that whilst the meaning of 'material consideration' is not codified in statute, it is a question of law and not planning judgement to be determined on a case by case basis.
An overview of the salient facts is instructive to an understanding of the issues raised. In February 2010, the claimant applied for planning permission for development comprising up to 175 dwellings and associated amenities on the Site. Wokingham B.C. (the local planning authority) refused planning permission, causing the claimant to appeal the decision.
The Inspector's inquiry into the refusal appeal closed on 2 March 2011 but his report was not issued until 30 March 2011. On 23 March 2011, during the intervening period, the Government issued the Ministerial Statement "Planning for Growth" which unveiled the forthcoming National Planning Policy Framework and significantly stated (amongst other things):
"The Government's clear expectation is that the answer to development and growth should wherever possible be 'yes', except where this would compromise the key sustainable development principles set out in national planning policy… The [Secretary of State] will take the principles in this statement into account when determining applications that come before him for decision."
In a letter dated 28 May 2011, the Secretary of State issued his decision upholding his Inspector's recommendation to dismiss the appeal, effectively refusing planning permission for the development.
Notably, it was common ground between the parties at the inquiry that 'in accordance with usual practice' the Inspector was under no obligation to take the Ministerial Statement into account since it was issued after the close of the inquiry. In retrospect, this matter of common ground between the parties proved a fatal error to the Secretary of State's decision resulting in a successful statutory challenge by the claimant.
Lang J handed down a considered judgement accepting the claimant's submission that the Ministerial Statement had not been taken into account in the Inspector's decision and it was a material consideration as a matter of law. The following reasoning in the judgement raised particularly instructive practice points:
- The judgement emphasised the importance of reading decision letters of the Secretary of State (i) in good faith and as a whole, (ii) in a straightforward manner without excessive legalism or criticism and (iii) as an informed reader, with an understanding of the principal issues in the case. Although Lang J accepted that the absence of any mention of the Ministerial Statement did not amount to a failure to consider it, the decision letter carefully and methodically identified the relevant legislative provisions, national and local planning policies. Consequently, on a balance of probabilities the Ministerial Statement was overlooked.
- Weighing up submissions for Wokingham B.C. that the Ministerial Statement was comparatively low in the hierarchy of statutory and policy considerations, Lang J concluded that the statement was not so trivial that the decision maker was entitled to disregard it. It had potential relevance as a material consideration and the decision maker would not perform his duty under Section 38(6) properly without having regard to all material considerations. Interestingly, the court saw later decision letters of the Secretary of State which acknowledged the Ministerial Statement as a "material consideration".
- Lang J had no difficulty dismissing the somewhat contorted submissions for the Secretary of State that having concluded the development was unsustainable, the decision maker was under no duty to take account of the Statement. The Statement being a material consideration, Lang J unequivocally asserted that decision makers were required first to have regard to it and then to decide the extent to which it affected the decision. In essence, the court asserted the established maxim that material considerations are a matter of law, whilst the weight attributed to them is properly a matter for the decision maker. The application was remitted back to the Secretary of State for reconsideration.
First and foremost, the case usefully answers in the affirmative the historically murky question of whether ministerial statements are capable of being material considerations. Notwithstanding their non-statutory or informal status, the authors believe that it would be unsafe to disregard as trivial or irrelevant statements which include clear and, in the instant case, emphatic pronouncements with potential land use or development implications. In practice, this will prove to be a difficult judgement to make. For example, is the recent ministerial statement (issued on 24 January 2013) to allow permitted development rights for commercial to residential uses to be treated as a material consideration in determining an office to residential change of use scheme?
Secondly, the case re-emphasises the need for decision makers at all levels to expressly and sequentially identify, in the first instance, all factors deemed to be "material considerations", and thereafter attribute appropriate weight to them.