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||Neutral Citation Number:  EWCA Civ 1718
||Case No: C1/2013/1152
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MRS JUSTICE LANG DBE)
||Royal Courts of Justice
London, WC2A 2LL
||3 December 2013
B e f o r e :
LADY JUSTICE HALLETT DBE
LORD JUSTICE SULLIVAN
MR JUSTICE ARNOLD
||WOKINGHAM BOROUGH COUNCIL
||OXFORD DIOCESAN BOARD OF FINANCE
(DAR Transcript of
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MRS SAIRA SHEIKH
(instructed by Wokingham Borough Council) appeared on behalf of the Appellant
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- LORD JUSTICE SULLIVAN: This is an appeal against the order dated 11 April 2013 of Lang J quashing a decision dated 26 May 2011 by the Secretary of State to dismiss the respondent's appeal against the appellant's decision to refuse outline planning permission for residential development of up to 175 dwelling,s, together with associated facilities, on land at Shinfield Glebe, Church Lane, Shinfield in Berkshire. The judge's judgment has the neutral citation  EWHC 802 (Admin).
- Before the judge, the Secretary of State's decision was challenged on six grounds. The judge rejected five of those grounds, which had challenged various aspects of the inspector's report with which the Secretary of State had agreed. The judge allowed the respondent's challenge on one ground only: the Secretary of State had failed to consider a ministerial statement, "Planning for Growth", which was issued on 23 March 2011, after the inquiry before the inspector, which finished in February 2011, but before the Secretary of State's decision letter dated 26 May 2011. The judge concluded that the Secretary of State, but not the inspector, was at fault in not considering the policy statement.
- While it is true, as the judge pointed out in paragraph 24 of her judgment, that the ministerial statement said that "The Secretary of State for Communities and Local Government will take the principles in this statement into account when determining applications that come before him for decision...", that should have been only the first stage in the judge's analysis. It was necessary, before deciding whether the failure to have regard to the policy statement should result in the quashing of the Secretary of State's decision, to identify which, if any, of the principles in the policy statement might have persuaded the Secretary of State to allow, rather than to dismiss, the respondent's appeal.
- Ms Sheikh submits that the judge failed to proceed to this second stage. She submits that the judgment does not identify any particular principle in the policy statement which might have led the Secretary of State to take a more favourable view of the proposed development.
- It was particularly necessary to carry out the second stage of analysis because, as Ms Sheikh points out, the principles in the statement were in large measure, if not entirely, a restatement of principles which were to be found in existing policy documents which the inspector and the Secretary of State undoubtedly had applied when considering the merits of the proposed development.
- She further submits that although the judge set out the principal message in the policy statement "to introduce a strong presumption in favour of sustainable development" (see paragraph 23 of the judgment), the judge failed to recognise that the inspector, with whom the Secretary of State agreed, had concluded that the proposed development was not sustainable in that it did not "make adequate provision for sustainable travel modes, especially in terms of public transport" (see paragraph 18 of the decision letter).
- The respondent had criticised the inspector's reasoning on this issue in ground 4 of its section 288 challenge before the judge, but the judge had rejected ground 4 of the challenge. It follows that at best from the respondent's point of view, because the principles related to sustainable development, they were simply not engaged at all; or at worst from the respondent's point of view, if they were engaged then they could only have reinforced the Secretary of State's decision to dismiss the appeal.
- I granted permission to appeal on those two grounds. The respondent does not resist the appeal. In these circumstances, I have no doubt that the appellant's grounds of appeal have been made out. It is not enough to say that a policy document was a material consideration which the decision taker should have taken into account, unless there is some rational basis for concluding that the policy document might have led the decision taker to reach a different conclusion. There is no such basis in the present case; indeed, the reverse is the case. For my part, I would allow the appeal.
- MR JUSTICE ARNOLD: I agree.
- LADY JUSTICE HALLETT: I too agree.
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