Court of Appeal rejects legal challenge to grant of permission for schemes providing 721 homes

It took the case against the Secretary of State for Housing, Communities and Local Government, developers Cala Homes (Chiltern), Headlands Way and St Albans City and District Council.

Lord Justice Lewis heard that Cala Homes (Chiltern) sought to build 391 homes in the locality and Headlands Way 330. St Albans had refused both and the developers appealed.

Following the closure of the inquiry, but before the decision of the Secretary of State, St Albans published the Arup Green Belt Review, which it had commissioned as part of its development of a local plan, recommending which areas should be released from the Green Belt.

Lewis LJ noted no party sent this to the inspector, who recommended granting both appeals, which was accepted by the Secretary of State.

Keep Chiswell Green then applied for review under section 288 of the Town and Country Planning Act 1990 on the basis that the Secretary of State unlawfully failed to have regard to the Arup review as a material consideration which superseded an earlier Green Belt review, known as the SKM review.

Mrs Justice Lang dismissed the claim, holding that Keep Chjswell Green was not entitled to rely on new evidence not placed before the inspector or the Secretary of State ,and that the Arup Review was not a mandatory material consideration.

Keep Chiswell Green’s case at the Court of Appeal was that Lang J had been wrong to find that there was a preliminary procedural bar preventing it from arguing that the Secretary of State had failed to have regard to a material consideration.

It also argued Lang J had been wrong to find that the Arup Review was not "so obviously material" as to be a mandatory material consideration.

Lewis LJ said Lang J had been wrong to find there was a preliminary issue of whether the appellant could advance an argument based on new grounds and evidence.

He said Lang J’s analysis “does not fully reflect the case law” and “in particular it is wrong to approach the question on the basis that there is a 'fundamental obligation on parties to a planning appeal to place before the decision-maker material on which they rely, and not to raise points for the first time in a High Court challenge’”.

There were circumstances where a decision-maker may be found to have acted irrationally by failing to have regard to something obviously material even if it were not brought to his attention by the parties, Lewis LJ noted.

He said: “For my part, the sensible course of action is, in fact, to consider whether the new consideration is a material consideration, that is, is one that is so obviously material to the decision that it would be irrational for the Secretary of State to reach a decision without taking it into account. There is nothing in the present case to suggest that any discretion, which I think must be a discretion to refuse a remedy or to refuse permission to bring the claim, should be considered first.”

Despite this, he found the Arup review was not a material consideration. It concerned releases of land from Green Belt, not whether planning permission should be granted for particular developments at particular sites within the Green Belt.

Its conclusions and recommendations had not yet been incorporated into a draft plan and they had not been tested by an independent examiner.

Lewis LJ said: “In those circumstances, I do not consider that the Arup review was so obviously material that it would be irrational for the Secretary of State not to have regard to it in deciding whether to allow these two appeals and whether to grant permission for each of these two proposed developments.”

He also rejected an argument that the inspector had considered the SKM Review and so should have considered the Arup one that replaced it.

“Reading the inspector's report as a whole, it is clear that he considered that the conclusions of the 2nd stage SKM Review ‘cannot be directly applied to the appeal proposals’ as it was looking at the district on a large and strategic basis and was considering the potential release of land from the green belt through the plan making process,” Lewis LJ said.

He added: "The fact that the council has not suggested, however, that the Arup review is material to the issue that had to be decided reinforces the conclusion that I have reached.

“I also note that the appellant…did not suggest to the inspector or the Secretary of State that the Arup review was material to the decision that he had to make.”

Lewis LJ dismissed the appeal and Lady Justice Elisabeth Laing and Lady Justice Andrews both agreed.

Mark Smulian