At your discretion?

Dr Sue Chadwick examines recent cases on the scope and limits of decision making in planning.

In a recent case involving Moulton Parish Council [1] Mr Justice Gilbart was scathing in his summary of the Secretary of State's decision-making, calling it a "complete and unexplained volte face" leading to the quashing of the permission. The planning system often requires its decision makers to exercise discretion and make a planning judgment on the merits of a proposal. This article compares the scope and limits of that judgment in a number of decision-making contexts.

Discretion and the Secretary of State

The Moulton case involved a land near Newmarket and close to land used by racing stables. Permission had previously been refused for a larger scheme during which it was accepted that refusal could not be justified on highway grounds or the impact of the scheme on the horse racing industry. Gilbart J noted that the Inspector’s “robust conclusion was accepted and adopted by the SSCLG”. The smaller second scheme was also called in and this time the Inspector recommended approval – but the Secretary of State took more than a year to issue a refusal based partly on the effects of the scheme on traffic and the horse racing industry.

As well as some interesting reflections on thoroughbred horses and their tendency towards skittishness and "spooking" Mr Justice Gilbart summarised the legal principles that applied to the Secretary of State’s decision making process:

• he must apply his own policies or give reasons why not – and in this case “he never referred to the policy, nor to the issue of whether to disapply it” (para 152)
• he must give reasons for making different decision on the same facts – but the decision was “wholly deficient of any discussion of the reasons for the stark disagreement with the previous decision” (para 161)

Mr Justice Gilbart concluded that there was “no reason to think that the decision would have been the same had he not failed in those two respects” and quashed the decision.

Discretion and Planning Inspectors

Decision-making discretion was also considered in a case last month - this time in relation to an Inspector’s decision considered by Mr Justice Cameron [2]. The case concerned an application to convert four flats into a single family dwelling with associated internal alterations. It was accepted by all parties that the Inspector, in his consideration of the application, made a mistake of fact in relation to how vacant units were to be treated in the assessment of housing need.

In contrast to the Newmarket case, where guidelines established in North Wiltshire [3] were applied, in this judgment the most relevant case was E v. Secretary of State for the Home Department [4] that established the principle that “the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law”(para 61).

Mr Justice Cameron went on to consider what effect the Inspector’s mistake had on the validity of the decision as a whole and ruled that the central question was how material the mistake was: "the issue to be determined is not whether the mistake played a decisive part in the inspector's reasoning or whether it played a part in the dominant reasoning, but whether it played a material part in the reasoning.” (para 33). The challenge succeeded and the decision was quashed.

Discretion and Planning Committees

In planning law the decision-maker is often a committee of lay members rather than an individual with specialist knowledge - as was the situation in the case of Irving v Mid Sussex [5]. The facts were slightly unusual in that it concerned the council’s decision to grant permission to itself for the construction of a large house at Newbury. The council’s cabinet approved the principle of disposal in October 2013, justified on the need to maximise capital assets. A troubled planning history followed, including two quashed permissions, leaving just one permission in place. The council reaffirmed its approval of the principle of development in March 2017.

Mr Justice Cranston ruled that the application made in relation to the first 2013 permission was out of time and went on to consider whether the council’s decision not to reconsider a flawed decision was itself unlawful. He acknowledged that the council had a power either to revoke or apply to quash a planning permission and a duty to consider whether to or not to do this. However, he also recognised that the council could use its discretion to decide not to unpick previous decisions, even where their deficiencies were evident and acknowledged, and that showing that this was unreasonable required passing a ‘very high threshold’ (para 41). The claim was dismissed.

Discretion and local authority officers

Most planning decisions are of course taken by officers – but rarely come before the courts. The Couves [6] case is therefore unusual in that it considers the scope of delegated powers generally and specifically the power of an officer to authorise the detailed terms of a planning obligation agreement under section 106 of the 1990 Act. The local authority resolved to grant consent in April 2013 and permission was granted a year later after negotiation of the related 106 agreement. That grant was challenged on the basis that the officer had no authority either to negotiate the terms of the agreement or to authorise the eventual decision.

Mr Justice Ouseley considered the facts of the case in relation to the overarching statutory power of delegation – section 101 of the Local Government Act 1972, and the Council’s own scheme of delegation in relation to the council’s Leader, committees and a number of its officers. He focussed in particular on the actions of the planning officer who reported back to the committee on the progress and completion of the relevant s106 agreement and the issuing of the permission.   He noted that the scheme of delegation was not entirely transparent but that there could be “a dual and concurrent delegation from the council both to the RB and to the officer” (para 43) and confirmed the officer’s authority under it: “it can safely be assumed that the RB trusted its officer to do the best which could be done”. (para 37).

The judge also considered, particularly in light of the Kides [7] decision, the extent to which changes in circumstances that occurred between the resolution to grant permission and the actual permission required the terms of the agreement to be reconsidered by the committee rather than agreed by an officer. As with the other issues, he confirmed rather than restricted the scope of the officer’s authority: “the officer's decision would only have breached the Kides principle if there were any material changes after the resolution which could affect it” (para 95).

The widest discretion of all?

It is clear from these decisions that the scope of discretion in planning decision-making is fairly broad and can be challenged only where the decision is irrational or based on a mistake of fact or law. Generally, such decisions would also be at risk where political, rather than planning, considerations predominated – except where the decision maker is the Secretary of State, as the Appeal Court’s decision in West Berkshire [8] confirmed. This concerned the legitimacy of a Written Ministerial Statement on the exclusion of some sites from making payments for affordable housing. The judgment overturned the previous ruling, and confirmed that while the Secretary of State could not “countermand or frustrate” the operation of the law relating to planning decisions (para 22) he was nevertheless entitled to “prefer his own policy to the development plan” (para 25) and that “his policy choices are for him” (para 36).  

Discretion may or may not be, as Shakespeare suggested, the better part of valour; but when it comes to planning Jane Austen appears to be the primary authority: “What arises from discretion must be honoured." [9]

Dr Sue Chadwick is a Senior Associate in the Planning and Environmental Team at Birketts. She can be contacted on 01245 211245 or This email address is being protected from spambots. You need JavaScript enabled to view it..