Appeal judges uphold ruling on ministerial failure to take into account earlier decision

The Secretary of State for Communities and Local Government was wrong to decide a planning appeal without referring to a decision he reached shortly before on a similar issue in the same area, the Court of Appeal has said.

Lindblom LJ said in DLA Delivery v Baroness and Mr Patrick Cumberlege (Rev 1) [2018] EWCA Civ 1305 that the appeal turned on “did the Secretary of State 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?”

The case concerned an application by the appellant, DLA Delivery,  to build 50 homes in Newick, which was turned down by Lewes District Council but allowed by the Secretary of State.

In August 2017 John Howell QC, sitting as a deputy judge of the High Court, allowed the application of the respondents, Baroness Cumberlege of Newick and her husband, Mr Patrick Cumberlege, under section 288 of the Town and Country Planning Act 1990. DLA Delivery appealed that ruling.

The respondents, who are local residents, argued that the Secretary of State failed to take into account as a material consideration his own conclusion nine weeks earlier in a case in nearby Ringmer that the relevant policy, known as CT1, operated by Lewes was “up-to-date for the purposes of this appeal”.

They further argued that he had made a material error of fact in treating the appeal site as lying outside the seven km ‘zone of influence’ for the Ashdown Forest Special Protection Area.

Lindblom LJ said: “There were, I think, at least three factors that, taken together, made it unreasonable for the Secretary of State not to have regard to the Ringmer decision before determining the Newick appeal, and, in particular, before reaching a conclusion on the question of whether policy CT1 was up to date.”

He said the two proposals were for the same form of development in the same district – housing on unallocated sites outside planning boundaries as defined by CT1, in settlements identified as ‘rural service centres’ in the joint core strategy.

Both had been called in because they related to a development of more than 10 dwellings where a neighbourhood plan had been prepared and both had been before the Secretary of State at the same time.

The Court of Appeal judge said: “It would not have been difficult for those whose task it was to prepare decision letters on behalf of the Secretary of State to find out whether another decision had recently been made by him in which effectively the same issues had been dealt with.

“But I think it is right to go further. In the particular circumstances here, no reasonable Secretary of State, aware of his responsibility for securing consistency in development control decision-making, would have failed to take reasonable steps to ensure that his own decisions on cases of the same kind, in the same district, taken within the same period, and which, for the same reason, he had recovered to determine himself, were consistent with each other – or, if they were not consistent, that the inconsistency was clearly explained.”

The appeal was dismissed.

Mark Smulian