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||Neutral Citation Number:  EWHC 1525 (Admin)
||Case No: CO/6597/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||24 June 2016
B e f o r e :
MR JOHN HOWELL QC
(Sitting as a Deputy High Court Judge)
|| THE QUEEN
On the application of
||- and -
||ASHFORD BOROUGH COUNCIL
||- and -
Mr Andrew Parkinson (instructed by Richard Buxton Env & Public Law) for the Claimant
Mr Giles Atkinson
(instructed by Council's Head of Legal & Democratic Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 24 May 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr John Howell QC :
- This is an application for judicial review of the grant of planning permission by Ashford Borough Council for four gypsy pitches and associated development at Milee, Nickley Wood Road, near the village of Shadoxhurst in Kent. The Claimant, Mr Raymond Cooper, who lives nearby, was given permission to bring this claim by Lang J.
- On behalf of the Claimant, Mr Andrew Parkinson, contends that the Council's decision to grant planning permission was flawed on four main grounds. (i) First he contends that the Council failed to apply section 38(6) of the Planning and Compulsory Purchase Act 2004. That enactment requires the determination of applications for planning permission to be made "in accordance with the [development] plan unless material considerations indicate otherwise". The Council failed to do so, so Mr Parkinson submits, since no judgement was reached on whether the proposed development accorded with a number of key development plan policies or with the development plan taken as a whole. Alternatively he submits that there were no adequately reasoned findings on these points or that any findings that there were, were flawed. (ii) Secondly Mr Parkinson contends that the Council failed to distinguish the development proposed from an earlier proposal (for which they had refused planning permission in January 2014) to station eight caravans at Milee to accommodate an extended gypsy family and failed to have regard to the importance of consistency in planning decisions. (iii) Thirdly he contends that there was a failure to have regard to what he submits was the fact that the grant of permission would set a precedent for the development of further gypsy and traveller sites causing cumulative harm to the semi-natural ancient woodland in the area. (iv) Finally he contends that the Council failed to have regard to the question whether the second condition which they imposed on the grant of planning permission, limiting occupation of the site to gypsies and travellers, would achieve its stated objective and whether a personal permission should have been imposed instead.
- Nickley Wood Road is a private road in the countryside about one mile south of Shadoxhurst. There is a sawmill at the entrance to the road which also serves other businesses, thirteen dwellings and a number of authorised gypsy and traveller sites.
- The land at Milee, for the development of which the Council gave planning permission ("the site"), is to the south of Nickley Wood Road. It is regarded in planning terms as being in the open countryside. It falls within an area that is covered by a blanket Tree Preservation Order and designated as ancient woodland. It also lies on the edge of Shadoxhurst Woods and Pastures, an 86 hectare Local Wildlife Site, and in the Shadoxhurst Woods Landscape Character Area, where the policy is to conserve and restore the landscape.
- The site itself consists of a thin strip of land most of which is to the rear of an exiting authorised gypsy and traveller site on Nickley Wood Road that has three permitted pitches. The parts of the site proposed for development consist of an existing hard-surfaced trackway and lawful hard-surfaced and tarmacked areas. Access to Nickley Wood Road was proposed through the existing authorised gypsy and traveller site to the north. Both sites are owned by the Interested Party, Mr Michael May, who was the applicant for the planning permission impugned in this claim.
- On the south side of Nickley Wood Road, to the west of the site, there are other authorised gypsy and traveller sites. These are (i) Kialarney, for which the Council gave planning permission for a twin unit mobile home for a Romany and associated hardstanding in March 2012; (ii) Woodland Vale, for which planning permission for the siting of three traveller units was granted by the Council in August 2013; and (iii) Oakdrive, which has planning permission for two static units.
- The Claimant contends that there are other, unauthorised caravans stationed on sites north and south of Nickley Wood Road. Mr Parkinson stated, for example, that part of a site known as Woodside on the north side of the road has been in occupation unlawfully by travellers for between four and five years and that an application for planning permission for a holiday static caravan park on that land was withdrawn on October 27th 2015. He also pointed out that the owners of another site on the north side of the road, Bambridge Wood, have advertised the land for sale in three lots of 30, 5 and 5 acres, stating that they are semi-cleared and suitable for traveller use.
THE DECISION IMPUGNED
- On November 11th 2015 the Council granted conditional planning permission for the making of a material change in the use of the site so that it may be used for the stationing of four gypsy pitches with associated development and for the erection of a goat barn.
- The development proposed comprised three pitches to be provided on an existing area of hardstanding at the southern end of the site with single mobile homes, a detached dayroom and a pair of semi-detached dayrooms. The fourth pitch and an accompanying dayroom were proposed on an existing tarmacked area used for car parking by the occupiers of existing authorised pitches to the north. The goat barn was proposed on existing hardstanding in a cleared area on the eastern side of the access track.
- The decision to grant permission was taken on behalf of the Council by their Development Control Manager under delegated powers. She had been provided with an assessment ("the assessment") and a recommendation to grant conditional planning permission by the Council's Case Planning Officer.
- Having identified relevant planning policies (including policies GP12 and EN32 of the Ashford Borough Local Plan and policies CS1 and CS 14 of the Local Development Framework Core Strategy) and having described the proposal, the relevant planning history and representations received, the assessment stated that:
"The main issues for consideration are:
- the principle of the proposed development
- gypsy status of the applicants
- need for and provision of gypsy sites
- the impact of the development on visual amenity/impact on ancient woodland and TPO trees
- the impact on the development on residential amenity
- highway safety
- other material considerations"
- In dealing with the principle of the proposed development, the assessment stated that:
"This application is subsequent to the refusal of an earlier planning permission under application 13/00980/AS which sought planning permission for use of a larger area of land for a gypsy site with the siting of 8 caravans. That proposal extended to a larger area of land to the south and south west of the current application site, onto previously undeveloped land. The current application is limited to the areas of existing hard surfacing which have been deemed lawful.
Central Government advice contained within the NPPF provides concise government guidance with the presumption in favour of sustainable development to be seen as "a golden thread running through decision-taking". The Framework identifies that there are 3 dimensions to sustainable development - an economic role, a social role and an environmental role which should not be undertaken in isolation. The NPPF also states that Local Planning Authorities should recognise the intrinsic character and beauty of the countryside and that the planning system should contribute to and enhance the natural and local environment by protecting and enhancing valued landscapes. This is endorsed by Development Plan Policy."
- When dealing with "the impact of the development upon visual amenity/impact on ancient woodland and TPO trees", the assessment stated that:
"The development will not be visible from Nickley Wood Road, there is existing well established and protected screening to all sides and there are no short term views into the site. As stated above, the site is TPO'ed ancient woodland and is on the edge of an 86 ha Local Wildlife Site. Unlike the proposal under the 2013 application, the current proposal does not result in the laying of additional hard surfacing at the site, will not result in the loss of trees and will not result in harm to the roots of those trees. Further, the development will not extend beyond the previously developed parts of the site. However, the use of the land, within this protected site, will be intensified and will result in harm to the wildlife and will prevent the re-establishment of species of flora and fauna in these areas. As such, a balancing exercise is required in terms of harm of the development and the benefits of the development."
- Having addressed these and the other main issues identified in turn, the assessment's conclusion was in these terms:
"The main issues in this case are:-
(a) The proposed development would contribute towards meeting the general need for gypsy sites in the Borough and as planning provision is still to be resolved, significant weight must be given in the decision making process to this.
(b) Although within the open countryside, the site is located a mile from Shadoxhurst which is identified under policy TRS1 of the Tenterden & Rural Sites [Development Plan Document] as suitable for minor residential development / infilling. Although services are limited in Shadoxhurst (pub, village hall, nursery, post office at Stubbs Cross) it does lie on a bus route. The site is also only 2.5 miles from Hamstreet which has a primary school, train station, village store, and a doctor's surgery. Ashford town is 7 miles away which has a full range of services. This is a sustainable location given that gypsy and traveller sites can be accepted in rural areas as a matter of principle.
(c) The parts of the site which are the subject of this application has lawful hard surfacing and some weight needs to be given to this. The proposed development would be confined to those hard surfaced areas and would not introduce any further hard surfacing on the protected land. The proposed development will result in some harm to the visual amenity of the area, but this will be limited, being to the rear of an existing site and being well screened. I do not consider the development will cause significant harm to the visual amenity of the locality.
(d) The development would not have an adverse impact upon the residential amenity of the closest neighbours;
(e) There is sufficient space within the ownerships land for parking and turning facilities and there would be no significant impact on highway safety.
The principle of the development in rural areas can be acceptable in general terms and the development would go some way to meeting the identified need for further gypsy sites. The council currently has a lack of suitable alternative sites in the short to medium term. Whilst the site is in the countryside, given its proximity to Shadoxhurst, Hamstreet and Ashford, I do not consider the location of the site to be unacceptably unsustainable for a gypsy and traveller site and it would satisfy the criteria of paragraph 13 of the [Secretary of State's Planning Policy for traveller sites]. Weight should also be given to the fact that the proposal would be entirely contained on previously developed land.
The proposed development would not cause significant harm to the character and appearance of the rural landscape and the wider countryside; would not be harmful to the residential amenity of the occupiers of dwellings in the locality; would not be harmful to highway safety and would not result in the loss of trees. The resultant intensity in the use of this part of the site will have a negative impact on the ancient woodland and wildlife site, however this impact is required to be balanced against the previous developed nature of this part of the site and the benefit of the development. Given the condition of the application site, I consider this impact to be limited.
Concerns have been raised over the dominance of gypsy and traveller sites in Nickley Wood Road however, this is an extension to an existing site and will result in 4 additional pitches to the rear of that site. As stated above, Nickley Wood Road is a mixed community of the settled population and gypsy sites. Consideration is required to be given to the impact of the proposed development on the nearest settled community in terms of scale and also in maintaining a peaceful and integrated co-existence between the site and the local community, respecting the interests of the settled community. I do not consider the addition of the proposed four pitches to the rear of the existing site to result in a situation where the gypsy sites dominate the nearest settled community.
On balancing the identified harm resulting from, and the benefits of this proposal in this location, I conclude that it falls in favour of the development.
Whilst I note the concerns raised by the objectors, given the lack of harm identified combined with the ongoing identified need for gypsy & traveller sites in the Borough and at present the lack of a 5 year supply of deliverable / available sites I recommend that planning permission is granted."
The concerns noted included objections on the ground that the proposed development was contrary to development plan policy and that, if permitted, it would set a precedent.
- The assessment concluded with a recommendation to grant conditional planning permission. That recommendation was accepted by the Development Control Manager.
- The second condition imposed was that:
"The site shall not be occupied by any persons other than gypsies and travellers as defined in paragraph 1 of Annex 1: Glossary of the Planning Policy Guidance for Gypsy and Traveller Sites.
Reason: The site lies in an area where an unrestricted caravan site would not normally be permitted."
The sixth condition imposed was that:
"Prior to the installation of the caravans, details shall be submitted of a scheme to fence off the woodland area from the area of the caravans identified on the proposed site plan. This scheme shall include details of the type and height of fence and it's location. This scheme shall be approved in writing by the Local Planning Authority and it shall be installed prior to the installation of the caravans, and thereafter retailed.
Reason: The surrounding land is ancient woodland and is subject to a Tree Preservation Order. The fence is required in order to preserve the amenity of the area and this valuable asset."
GROUND 1: COMPLIANCE WITH SECTION 38(6) OF THE PLANNING AND COMPULSORY PURCHASE ACT 2004
i. The development plan
- As I have indicated the first ground on which Mr Parkinson contends that the decision to grant planning permission is flawed is that the Council failed to apply section 38(6) of the Planning and Compensation Act 2004. Where that enactment applies, as it does when a local planning authority determines whether or not to grant planning permission, it requires that "the determination must be made in accordance with the [development] plan unless material considerations indicate otherwise". In this case the development plan comprised, so far as relevant, certain saved policies of the Ashford Borough Local Plan, the Local Development Framework Core Strategy and the Tenterden and Rural Sites Development Plan.
- In his submissions Mr Parkinson drew attention to two policies in the Local Plan, GP12 and EN32. These provide that:
"GP12. To protect the countryside for its own sake, for its landscape and scenic value and for the important wildlife habitats it contains, and to respond to the need for carefully managed change to accommodate demands for agricultural diversification, tourism and public access to the countryside".
"EN32. Planning permission will not be granted for any development proposals which would damage or result in the loss of important trees or woodlands."
- He also drew attention to parts of policy CS1 in the Local Development Framework Core Strategy that provide that:
"CS1. Sustainable development and high quality design are at the centre of the Council's approach to plan making and deciding planning applications. Accordingly, the Council will apply the following key planning objectives:
C. Protection for the countryside, landscape and villages from adverse impacts of growth and the promotion of strong rural communities;
D. New places - buildings and the spaces around them - that are of high quality design, contain a mixture of uses and adaptable building types, respect the site context and create a positive and distinctive character and a strong sense of place and security;"
- It also convenient to set out at this point the part of the Local Development Framework that deals with sites for gypsies and travellers. It states that:
"10.22 The Council is working with three other Kent districts – Maidstone, Tonbridge and Malling, Tunbridge Wells – and the County Council - on a sub-regional Gypsy and Traveller Accommodation Assessment survey to assess the needs of gypsies and travellers. The findings of this assessment will feed into the South East Plan that will eventually allocate specific plot requirements back to each District. The guidance from the government in ODPM Circular 01/06 makes it clear that if there is an identified need then there is a requirement for the Council to identify suitable sites.
10.23 Dependent upon the outcome of the Assessment, the Council may need to identify a site or sites for gypsy and traveller accommodation. If so, the site(s) will be identified on the basis of Policy CS14 below. In the meantime, any proposals for additional facilities for gypsies and travellers can continue to be assessed against national guidance.
POLICY CS14: Gypsies and Travellers
10.24 If required, sites for gypsies and travellers (as defined in Circular 01/06) will be identified in a site allocation Development Plan Document on the basis of the following criteria:-
10.25 a) It should be based on a clearly identified need that cannot be met on an existing or planned site;
10.26 b) It should be in accordance with the guiding principles set out in Policy CS1, have regard to impact on the countryside and transport impact in accordance with Policy CS15."
Although the Council recognises the need for sites for gypsies and travellers, there is no development plan document allocating the required sites.
- Mr Parkinson submits that the Planning Officers failed to "grapple" with "the section 38(6) test". He submits that they failed to consider whether the development proposed was in accordance with "key development plan policies", namely parts C and D of Policy CS1 of the Local Development Framework Core Strategy as well as GP12 and EN32 of the Ashford Borough Local Plan, and that they failed to find (as they were required to do) whether or not the development proposed was in accordance with the development plan taken as a whole: see City of Edinburgh Council v Secretary of State for Scotland  1 WLR 1447 per Lord Clyde at p1459d-e; R (Hampton Bishop Parish Council) v Herefordshire County Council  EWCA Civ 878,  1 WLR 2367, per Richards LJ at ; Tiviot Way Investments Limited v Secretary of State for Communities and Local Government  EWHC 2489 (Admin),  JPL 171, per Patterson J at ). Alternatively he submits that there were no adequately reasoned findings on these points or any findings that there were were flawed.
- On behalf of the Council, Mr Giles Atkinson, contends that the relevant Officers had regard to these policies that were among those listed as being relevant as the beginning of the assessment. In terms of the specific policies, he submitted that Part C of Policy CS1 is concerned with the protection of the countryside as such, as is part of Local Plan GP12. That was a matter which the Officers considered when finding that the principle of development on this site was acceptable. He further submitted that Part D of the Policy CS1, that seeks high quality new places, and Local Plan policies GP12 and EN32 were concerned with the impact on visual amenity as well as the impact of any development on ancient woodland and TPO trees. Those are matters the assessment considered under those headings.
- The Council's position on the conclusions reached about those policies, however, has not been consistent. In response to the Claimant's pre-action protocol letter that had asserted that the development was contrary to these and other policies, it was stated that the proposed development "would not be contrary to the policies referred to by the Claimant". Mr Atkinson submitted, however, echoing the summary grounds on which the Council opposed permission, that it is plain that the officers considered that the proposed development did not comply with Local Plan policy GP12, because the assessment recognised there would be harm to wildlife and that it would prevent the re-establishment of flora and fauna on the areas which had already been developed. He further submitted that they considered that the development was not in breach of Local Plan EN32 as it did not involve in any loss of trees or harm to their roots.
- The Council's position on whether or not their officers considered the proposed development to be in accordance with the development plan as a whole has likewise been inconsistent. In response to the pre-action protocol letter, the Council referred to the balancing exercise undertaken in the assessment, contending that it demonstrated that the allegation made, that the assessment had not set out clearly the material justifications for departing from the development plan, was simply mistaken. That involved an apparent acceptance that it did. By contrast, in their summary grounds explaining why permission to make this claim should be refused, it was said that, although the proposed development did not accord with Local Plan policy GP12, "other considerations [including the contribution to the need for more gypsy sites] contribute to the assessment that, in the light of the whole plan, the proposal is in accordance with it". In his skeleton argument, however, reverting to the approach in the response to the pre-action protocol letter, Mr Atkinson submitted that it was clear that the Officers treated the development as one that was not in accordance with the development plan as the assessment recognised that a balance had to be struck, weighing material considerations in the form of the need for gypsy and traveller sites against the negative but limited impact on the ancient woodland and wildlife site. Had the proposal been in accordance with the development plan, then no such balancing exercise in accordance with section 38(6) would have been required. Orally Mr Atkinson appeared to revert to the approach in the summary grounds, contending that the question of the need for, and provision of, gypsy and traveller sites was raised by Policy CS14 and was weighed in the balance when determining whether the development was in accordance with the development plan as a whole.
- Mr Parkinson submitted in response that the Council was seeking to rewrite the decision; that the development was unarguably inconsistent with Local Plan Policy EN32, which required permission to be refused as it would damage important woodlands (as the assessment recognised), and that the need for gypsy and traveller sites was irrelevant when determining whether the application was in accordance with the development plan. Since there was no Development Plan Document allocating the site as a gypsy and traveller site, Policy CS14 did not support the proposed development and only policies, not explanatory text, were relevant when applying section 38(6) of the 2004 Act: see R (Cherkley Campaign Ltd) v Mole Valley District Council  EWCA Civ 567,  2 EGLR 98, per Richards LJ at -.
- In dealing with any application for planning permission a local planning authority is required to have regard to the provisions of the development plan so far as material: see section 70(2)(a) of the Town and Country Planning Act 1990. In this case the assessment identified all the development plan policies to which I have referred and others as relevant development plan policies when considering the proposed development. But reference to relevant policies is not of itself sufficient to discharge that duty. An authority must also interpret the policies correctly and, given the duty imposed by section 38(6) of the Planning and Compulsory Purchase Act 2004, as a general rule, it must also determine (a) whether the individual material policies support or count against the proposed development or are consistent or inconsistent with them and (b) whether or not the proposed development is in accordance with the development plan as a whole: see Tesco Stores Ltd v Dundee City Council  UKSC 13,  PTSR 983, per Lord Reed at -, ; R (Hampton Bishop Parish Council) v Herefordshire County Council  EWCA Civ 878,  1 WLR 2367, per Richards LJ at , -. Mr Atkinson did not suggest that this was a case in which a departure from such general rules would be lawful.
- The assessment contains no statement whether or not the individual policies to which I have referred supported or counted against the proposed development and whether it was consistent or inconsistent with them. Nor did it state whether or not the development proposed was considered to be in accordance with the development plan as a whole.
- A local planning authority is not now, however, under any statutory obligation to give any reasons, or to give any summary of their reasons (as they once were), for the grant of planning permission, whereas they are required to give full reasons for any refusal of permission or conditions imposed. In such circumstances the Court of Appeal has found that there was no general obligation at common law requiring reasons to be provided for the grant of planning permission: see R v Aylesbury District Council ex p Chaplin (1998) 76 P&CR 207. There may be something in the circumstances such that reasons need to be provided: see eg R v Mendip District Council ex p Fabre (2000) 80 P&CR 500 per Sullivan J (as he then was) at pp509-513, Oakley v South Cambridgeshire District Council  EWHC 570 (Admin) per Jay J at -. Article 6 of the ECHR may also require reasons to be provided to a person whose civil rights are determined by the grant of permission. But Mr Parkinson has not sought to contend that this was such an exceptional case in which there was any requirement on the Council to give reasons for the grant of permission.
- The question is, therefore, whether the Claimant has discharged the onus on him to show on the balance of probability that, when taking the decision, the Development Control Manager has failed to make the determinations required or, if she did, they were legally flawed in some respect.
- The Claimant can, of course, do no more than produce such documents as are available to him that record what has occurred. Those do not record what conclusions the Development Control Manager made (if she made any) about (a) whether the individual material policies supported or counted against the proposed development or were consistent or inconsistent with them and (b) whether or not the proposed development was in accordance with the development plan as a whole and what her reasons (if any) were for any such conclusions. These are questions of fact. The Council has not filed any written evidence from her.
- As Sales J (as he then was) stated in R (Das) v Secretary of State for the Home Department  EWHC 682 (Admin) at :
"Where a [Defendant] fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation, where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party: Wisniewski v Central Manchester Health Authority  Lloyds Rep Med 223 , 240; Herrington v British Railways Board  AC 877 , 930G-H (Lord Diplock); The Law Debenture Trust Corporation plc v Elektrim SA  EWHC 1801 (Ch), -. The basis for drawing adverse inferences of fact against the [Defendant] in judicial review proceedings will be particularly strong, because in such proceedings the [Defendant] is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, "to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings" (Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment  UKPC 6;  Env LR 761 , at para.  per Lord Walker of Gestingthorpe; and see R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1409;  All ER (D) 450 (Oct) at  per Laws LJ, and I v Secretary of State for the Home Department  EWCA Civ 727 , -)."
- As I have mentioned, however, the Council did file an Acknowledgement of Service incorporating summary grounds for contesting the claim in which their Head of Legal and Democratic Services signed a statement that the Defendant believed that the facts stated in the form were true. CPR 32.6(2) provides that "at hearings other than the trial, a party may rely on the matters set out in...his statement of case". Notwithstanding the distinction recognised between a statement of case and an acknowledgement of service in CPR 22.1(a) and (d) and in CPR Parts 15 and 16, Collins J held that both the summary grounds contained in an Acknowledgement of Service and detailed grounds in judicial review proceedings constitute a statement of case within the definition of that term for the purpose of the CPR in CPR 2.3(1) in R (Corner House Research) v BAE Systems Plc  EWHC 246 (Admin),  CP Rep 20. On that basis, therefore, the Council would be entitled to rely on the matters stated in its summary grounds at the hearing of this claim. If the summary grounds contain what can be said to constitute "written evidence", then it will have been served under CPR 54.8 and be admissible by virtue of CPR 54.16(2)(a). But in any event in my judgment the Council could not resile from any facts stated in its summary grounds without providing written evidence that they are incorrect (which should also explain why they were incorrectly set out).
- Where there are issues of fact about what conclusions an authority may have reached and for what reasons, in my judgment it may well be unsatisfactory for an authority to rely on any summary grounds they have filed. CPR 54.14 provides for those who have served an Acknowledgement of Service to serve any written evidence within 35 days after service of the order giving permission. It is plainly preferable for any relevant facts in issue to be verified in a witness statement by a person who can do so of their own knowledge. Moreover summary grounds for opposing a claim are documents primarily setting out arguments. They do not always clearly distinguish (as no doubt they should) between facts and arguments. For example it can sometimes be difficult (as in this case) to decide whether the reasons stated are those that were in fact entertained by a decision maker for any conclusion reached or those that may be advanced to justify it. The guidance in the cases is that, where the Defendant has to explain the decision-making process and the reasoning underlying a decision (where it is not apparent from the documents), its duty of candour should be discharged in witness statements. In my judgment that guidance should normally be followed so that the facts can be clearly established in order to resolve claims fairly and justly.
- In the Council's summary grounds it was asserted that the proposal was "clearly judged to be in accord with policy EN32". This appears to be an inference drawn from the assessment rather than a statement of what the Development Control Manager may in fact have thought. The reason given for the judgment was that the assessment stated that the proposed development would not result in the loss of trees. Local Plan Policy EN32 is not concerned, however, merely with damage to, or loss of, important trees. It is also concerned with, and requires permission to be refused for, any development proposals which would damage important woodlands. In this case the assessment concluded that "the resultant intensity in the use of this part of the site will have a negative impact on the ancient woodland", albeit that the impact was considered to be "limited". Although a condition was proposed to address such impact on the ancient woodland, the assessment did not suggest that it would eliminate any "negative impact" such that no damage would be caused. On this basis, if this part of Policy EN32 is considered, it follows inevitably that the grant of permission for the proposed development was not consistent with the policy EN32. Given the contentions in the summary grounds and the absence of any witness statement, the only conclusion to be drawn is either that the Development Control Manager failed to consider this part of the policy or that she reached an irrational conclusion that the proposed development was consistent with it.
- The Council's summary grounds asserted that "the officer has clearly considered all the relevant issues and determined that the proposal was in accordance with the [development] plan as a whole". Although the first part of this statement consists of argument, the latter part appears to be an assertion of fact. Given that the summary grounds also asserted that the proposed development was in conflict with Policy GP12, that conclusion was said to have been reached by a balancing exercise "in which the conflict with GP12 is balanced against the fact that the proposal is on previously developed land and the benefit of the development, the contribution to the need for more gypsy sites...policy CS14 is clearly being applied...very clearly the proposal is found to be in accordance with policy CS14." It was asserted that policy CS14 expresses a "policy imperative...supportive of more gypsy sites in Ashford".
- In my judgment the proposal was not in accordance with Policy CS14. That policy is one that provides that, if required, sites for gypsy and travellers will be identified in a site allocation Development Plan Document on the basis of certain criteria. There is no such Development Plan Document and accordingly the site is not one allocated in it (whether or not it would meet those criteria). The policy is not one that requires permission to be refused for unallocated sites if there is a requirement for gypsy and traveller sites in advance of the adoption of such a development plan document. As the text in paragraph 10.23 of the Local Development Framework leading to policy CS14 states, "in the meantime, any proposals for additional facilities for gypsies and travellers can continue to be assessed against national guidance." But the proposed development neither complies with Policy CS14 nor does that policy as such support it. Accordingly in my judgment, if the Council's summary grounds describe the Development Control Manager's reasoning, they disclose a further error of law when explaining why it was thought that the proposed development was in accordance with the development plan as a whole.
- National guidance, in the form of Planning Policy for traveller sites, provides that local planning authorities should determine planning applications for traveller sites having considered inter alia the existing level of local provision and need for sites: see paragraphs 23 and 24(a) of the Planning Policy for traveller sites. Given that paragraph 10.23 of the Local Development Framework contemplates assessment in accordance with such national guidance, however, the question arises whether that reference enables the existing level of provision and need for sites to be taken into account when determining whether a proposed development for a traveller site is in accordance with "the development plan". If it does, it might be said that any error in the interpretation of Policy CS14 was immaterial.
- The "development plan" for this purpose includes the adopted or approved development plan documents, that is to say certain local development documents. These must set out the authority's policies relating to the development and use of land in their area and a reasoned justification for them. Until April 6th 2012 the part containing policies and the part which comprised the required reasoned justification had to be clearly identified. But both parts form part of the "development plan".
- In R (Cherkley Campaign Ltd) v Mole Valley District Council  EWCA Civ 567,  2 EGLR 98, Richards LJ (with whose judgment Underhill and Floyd LJJ agreed, stated (at ), however, that
"when determining the conformity of a proposed development with a local plan the correct focus is on the plan's detailed policies for the development and use of land in the area. The supporting text...is plainly relevant to the interpretation of a policy to which it relates but it is not itself a policy or part of a policy."
Although the actual decision in that case is distinguishable, I propose to follow that guidance.
- The difficulty in this case is that the text in paragraph 10.23 of the Local Development Framework Core Strategy is not a reasoned justification for Policy CS14. It may be said to be a policy (albeit one not identified as such) for the determination of planning applications until any required sites are identified in a development plan document in accordance with Policy CS14. Given that it is not identified as a policy (as other policies in the Local Development Framework Core Strategy are), however, in my judgement it would not be appropriate to treat it as one of the policies contained in that document, given the different levels of scrutiny which proposed policies that are identified as such inevitably attract in the process leading to the adoption of a development plan document. Accordingly, in my judgment paragraph 10.23 cannot be invoked as a justification for treating the need for further traveller sites as a material consideration when considering whether or not the proposed development was in accordance with the development plan.
- Assuming that the Development Control Manager did form conclusions on the consistency of the proposed development with policies in the development plan and whether the development was in accordance with it, therefore, it follows that the summary grounds disclose two errors of law: the first in relation to Local Plan policy EN32; the second in relation to policy CS14. Both errors also flaw the determination which the summary grounds states was made that the proposed development complied with the development plan as a whole given the conflict with Local Plan policy GP12 which it is said was recognised.
- The Claimant has accordingly established the first ground on which this claim is brought on that basis.
GROUND 2: THE PREVIOUS REFUSAL OF PLANNING PERMISSION AND THE IMPORTANCE OF CONSISTENCY IN PLANNING DECISIONS.
- Mr Parkinson contended that the Council had failed to distinguish the development proposed from an earlier proposal for 8 caravans for which the Council refused planning permission in January 2014 and that the Council failed to have regard to the importance of consistency in planning decisions.
- The grounds on which the earlier application was refused, as stated in the notice of refusal, were that:
"The proposed development would be contrary to Policy GP12 of the Ashford Borough Local Plan (2000), policies CS1, CS11, CS14 and CS15 of the Local Development Framework Core Strategy, Policies TRS17 and TRS18 of the Tenterden and Rural Sites Development Plan Document, Designing Gypsy and Traveller Sites Good Practice Guide (2008) and to Central Government Guidance contained in the NPPF and the Planning Policy for Traveller Sites and would therefore be harmful to matters of acknowledged planning importance for the following reasons:
1. The change of use of the land and the stationing of up to 8 static caravans together with the associated domestic paraphernalia and associated hardstanding would be intrusive development adversely affecting the character and appearance of the countryside which is designated as an Area of Ancient Woodland is covered by a Tree Preservation Order and lies within the Shadoxhurst Woods and Pastures Wildlife site 2012 and Shadoxhurst Woods Landscape Character Area.
2. The need for gypsy and traveller accommodation in the area does not outweigh the harm identified above."
- Mr Parkinson's submissions effectively assume that the Council were under an obligation to provide reasons for distinguishing the proposed development from that refused in 2014. I am not persuaded that there was any such obligation: the developments differ in a number of material respects, such as the nature of the land on which the development proposed in each case was to occur and the number of pitches each involved. But, even if there was any such obligation, in my judgment the reasons for distinguishing them are evident from the assessment.
- The assessment explicitly distinguished the proposed development from that for which planning permission had been refused by reference to the matters identified in reasons 1 and 2 in the notice of refusal. The assessment stated (as previously set out) that:
"This application is subsequent to the refusal of an earlier planning permission under application 13/00980/AS which sought planning permission for use of a larger area of land for a gypsy site with the siting of 8 caravans. That proposal extended to a larger area of land to the south and south west of the current application site, onto previously undeveloped land. The current application is limited to the areas of existing hard surfacing which have been deemed lawful."
"Unlike the proposal under the 2013 application, the current proposal does not result in the laying of additional hard surfacing at the site, will not result in the loss of trees and will not result in harm to the roots of those trees. Further, the development will not extend beyond the previously developed parts of the site."
The assessment concluded that such limited harm as the development proposed would cause was outweighed in this case by the need for gypsy and traveller pitches.
- Mr Parkinson contended, however, that this was insufficient to distinguish the two applications. Regard had to be had to the full basis on which the earlier application had been refused: R. (on the application of Havard) v South Kesteven DC  EWHC 1373 (Admin);  JPL 1734 at . In this case the assessment failed to take into account all of the grounds on which the earlier application had been refused, in particular policy CS15 in the Local Development Framework Core Strategy. That policy provides inter alia that:
"Developments that would generate significant traffic movements must be well related to the primary and secondary road network, and this should have adequate capacity to accommodate the development. New accesses and intensified use of existing accesses onto the primary or secondary road network will not be permitted if a materially increased risk of road traffic accidents or significant traffic delays would be likely to result.
In rural areas, proposals which would generate levels of traffic, including heavy goods vehicle traffic, beyond that which the rural roads could reasonably accommodate in terms of capacity and road safety will not be permitted."
- Mr Parkinson pointed out that the earlier and the proposed developments would both use the same rural roads and would both use the same existing access onto the primary or secondary road network.
- In considering the smaller development proposed in the later application, that contains only half the pitches, the assessment noted that:
"Kent Highways - raise no objection to the application, noting that Nickley Wood Road is a private road, and that the private road junction with the adoptable highway at Church Lane is located on the outside of a bend and has good visibility splays in both directions."
It stated that:
"The site would provide 4 additional pitches and whilst [it] would result in a net increase in movements to and from the site, these traffic movements would not be significant and would not place undue pressure on local infrastructure....there is good visibility splays in both directions where the private road meets the adoptable highway. Concerns have been raised over the ability of the private road to accommodate the traffic generated from the development and the lack of passing places, however, as stated above, the increase in traffic movement will be limited and in my view, will not result in a detriment to the safety of the users of the private road."
Its conclusion was that "there will be no significant impact on highway safety" and the development "would not be harmful to highway safety".
- Policy CS15 is only infringed by the grant of permission for a development if an intensified use of an existing access onto the primary or secondary road network would be likely to result in a "materially increased risk of road traffic accidents" or, in a rural area such as this, if the proposal would generate levels of traffic which the rural roads cannot reasonably accommodate in terms of capacity and road safety. The assessment was plainly that, in the case of the proposed development, there would be no such materially increased risk or problems in terms of capacity and safety.
- Mr Parkinson's case in effect is that, assuming that the earlier proposal would have infringed Policy CS15, some explanation must be provided why the later proposal by contrast would not also do so. Although Policy CS15 was referred to in the reasons for refusal of the earlier application, however, the reasons for the conflict with the policies identified contained no mention of any highway issue. That is no doubt because the officer's assessment of that application in respect of highway safety stated simply that there was "no issue". The assumption that the earlier proposal was in fact considered to infringe Policy CS15 is thus mistaken. But, even on the assumption that there was in fact a highway reason for refusing the earlier application, the reason why a different view was taken with respect to the proposed development under consideration is plain: the volume of movements generated by a development half the size of the earlier development was not assessed to be likely to have an effect that meant that granting permission would infringe Policy CS15. Moreover no more by way of reasons could reasonably be expected or required. Given that there was no highway reason identified in the two reasons given for refusal to explain how policy CS15 was infringed and the actual assessment identified no highway issue, there was no way in which reasons for any stated conflict (if there were indeed any) could be addressed and the proposed development distinguished so as to explain why a different conclusion had been reached: all that could be done was to assess the likely impact of the later, different proposal.
- Nonetheless Mr Parkinson submitted that consideration should nonetheless have been given (but was not) to the importance of consistency in planning decisions. As Mann LJ stated in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P&CR 137 CA at p145,
"One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision."
Mr Parkinson further submitted that consistency ought to be determined, not by reference to any analysis that in fact underpinned any earlier decision of a local planning authority, but only by reference to the notice of refusal itself, just as what a planning permission authorises, so he submitted, falls to be determined solely by the notice of the grant of planning permission and any document expressly incorporated by reference in it.
- In my judgment the effect of Mr Parkinson's submissions verges on the absurd in this case. It would require the Council to give weight to the importance of being consistent with an apparent conclusion unsupported by any apparent reason, disregarding the fact that it was evidently a mistake, notwithstanding the fact that, in their view, on the merits a different conclusion on the same matter should be reached in the case of the proposed development. But, even assuming (in the Claimant's favour) that the principles of construing planning permissions apply when considering refusals of permission, the notice in this case is not free from ambiguity given that the reasons for any conflict bear no relation to the policy in issue. In such circumstances reference to "extrinsic" documents would in any event be permissible. But, even ignoring that, to sustain his case Mr Parkinson would need to show that no reasonable authority would have failed to attach weight to the importance of being consistent with the earlier apparent conclusion that a different development was in conflict with Policy CS15 for some unknown reason when it thought the proposed development was unobjectionable in terms of that policy. In my judgment Mr Parkinson has not advanced a case that establishes that.
- This ground for impugning the decision to grant planning permission accordingly fails.
GROUND 3: PRECEDENT
- The third ground on which the decision in this case is impugned is that there was a failure to have regard to a material consideration, namely the whether granting permission would set a precedent for future development of gypsy and traveller sites in the local area.
- This was a concern which the Claimant expressed to the Council in his objections to the proposed development. His fear was that such further development would cause further access problems and completely change the character of the area to something more akin to a full scale gypsy encampment to the detriment of the environment and the settled residents. He contended that this was not merely a mere fear or generalised concern with no evidence to justify it. He referred to Woodside and Bambridge Wood, and more generally to "the remaining number of cleared open spaces available for development", as plots where such further development could be encouraged.
- Given that there were already previous grants of permission for gypsy and traveller sites along Nickley Wood Road, in his oral submissions Mr Parkinson submitted that the precedent which the decision impugned should be seen as setting was one of granting planning permission for gypsy and traveller sites when that would result only in limited harm to the semi-natural ancient woodland in the area. No such harm, he claimed, had been thought to result from the other permissions for such sites when they were granted. That, so he submitted, should have been seen as one of the main issues given the cumulative effect that such permissions could have on such a valuable natural resource; and, had that issue been considered, it could have made a real difference to the decision. Just as it would be "folly" for a decision maker not to consider the cumulative effect on the openness of the Green Belt of setting a precedent by granting permission for an inappropriate development such as a traveller site that was unobjectionable in itself (as the court had said in R (Wood) v First Secretary of State  EWHC 456 (Admin) at ), so here the Council should have considered that the ancient woodland could be materially harmed by numerous permissions each of which would itself cause limited harm. Mr Parkinson contended that it was irrelevant whether or not the Claimant had identified that particular concern: he could not know the basis on which the decision would be taken and the facts, so he submitted, speak for themselves.
- The assessment noted that neighbours had argued (among other concerns expressed about the proposed development) that "if permitted the development would set a precedent". The assessment noted such concerns but concluded that planning permission should nonetheless be granted given the lack of identified harm and the identified need for gypsy and traveller sites. On the face of it that would suggest that the concern about precedent was considered. But the Council's case is that it was not considered. Their summary grounds asserted that "the Council was correct in this case not to consider the prospect of its decision setting a precedent for future development. What the Claimant asserts as evidence of likely future applications in fact amounts precisely to the 'fear or generalised concern that' the Judge in Poundstretcher referred to." This argument includes a statement of fact, that the prospect of setting a precedent was not considered. What follows appears to be an argument seeking to justify that failure, rather than a statement of the reasons (if any) that the Development Control Manager had for not considering that matter. Mr Atkinson likewise submitted that what the Claimant had articulated was 'mere fear or generalised' concern". Woodside has been the subject of an invalid application for a different use. Beyond that, so he submitted, the Claimant's "evidence" amounted to no more than fearful speculation based on the size of plots on nearby sites which is not enough for precedent to be a factor in this case.
ii. Precedent as a material consideration
- The assumption that, for precedent to be capable of constituting a material consideration, there must be "evidence in one form or another" that granting permission would encourage other similar proposals which would then be difficult to resist and that "mere fear of precedent or a generalised concern is not enough", is based on the judgment in Poundstretcher Limited v Secretary of State for the Environment (1989) JPL 90. In my judgment such a formulation conflates a number of separate questions.
- The adverse consequences on other sites that the grant of planning permission may have is capable in law of being a material consideration in determining whether or not it should be granted: see Collis Radio Limited v Secretary of State for the Environment (1975) 29 P&CR 390 per Widgery LCJ at p396. Whether it is a material consideration on the facts of a particular case and, if it is, what weight should be given to it in that determination are questions of planning judgment. As Mr Duncan Ouseley QC (as then was) stated in Rumsey v Secretary of State for the Environment  JPL 1056 at p1061, "Poundstretcher cannot be seen as providing some precise legal test as to the nature of the material that [a decision-maker] must have when reaching a judgment on the precedent issue. The recognition of the inadequacy of mere fear or generalised concern is no more than saying that [the decision-maker] must have some material on which to base his view, and the nature of what is required will vary from case to case."
- If the decision maker takes the effect of setting a precedent into account, his judgment that it is a material consideration in a particular case and any further judgment that it is of itself sufficient to warrant the refusal of permission in that case are judgments that may be flawed if no reasonable planning authority could have reached them in the circumstances.
- These cases were concerned, however, with whether the decision-maker erred in taking the effect of setting a precedent into account. By contrast this case involves the contention that the decision-maker erred in failing to take that such an effect into account.
iii. When failure to take precedent into account constitutes a legal error
- As the House of Lords decided in Tesco Stores v Secretary of State for the Environment  1 WLR 759, a consideration is "material" for the purpose of section 70(2)(c) of the Town and Country Planning Act 1990 if it is "relevant": see per Lord Keith at p764g-h; R (Watson) v Richmond on Thames LBC  EWCA Civ 513 at . "The word "material considerations" is treated as it is elsewhere in administrative law: that is to say, as meaning considerations material (or relevant) to the exercise of the particular power in its statutory context and for the purposes for which it was granted": per Lord Carnwath JSC R (Health and Safety Executive v Wolverhampton City Council  UKSC 34,  1 WLR 2264, at .
- Based on what Lords Keith and Hoffmann said in Tesco Stores, however, it is sometimes said that "whereas the issue of whether a consideration is relevant is a matter of law, the weight to be given to a material consideration is a matter of planning judgment": see eg per Holgate J R (Nicholson) v Allerdale Borough Council  EWHC 2510 (Admin) at [11(iii)]. This might suggest that, if the Court considers that the consideration is relevant, the authority has unlawfully failed to have regard to it in breach of section 70(2)(c) of the 1990 Act.
- In my judgment, however, the question whether a consideration is material can conflate two questions that need to be distinguished. The first is whether the consideration is one capable in law of being a material consideration for planning purposes. The second is whether it is material for the purposes of the determination of the particular application in question. The first is plainly a question of law for the court to determine. The second, however, involves a question of planning judgment for the decision maker. As Scott Baker LJ stated in South Cambridgeshire District Council v Secretary of State for Communities and Local Government  EWCA Civ 1010,  PTSR 37 at , "it is a matter for the planning authority.... to decide what are the material considerations and, having done so, to give each of them such weight as she considered appropriate. That, so it seems to me, is a matter of planning judgment." That is consistent with the decision in Tesco Stores. The only question in issue in that case was in what circumstances was an offer to fund a link road (that is to say to provide a public benefit) capable of being a material consideration. There was no issue, once the question of law had been determined, whether the specific offer was material in the circumstances of that case: see R (WE Black Limited) v St Albans City and District Council  EWHC 2059 (Admin) at . Had it been, that would have involved a planning judgment and, as Lord Hoffman stated in that case, "if there is one principle more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State": see  1 WLR 759 at p780f. In my judgment the statements in the speeches of Lords Keith and Hoffmann in that case on relevance being a question of law need to be read in the context of the issue they were addressing on that appeal.
- It follows, therefore, that it is not for the court to determine whether any potential adverse consequences on the ancient woodland which the grant of planning permission might have by setting a precedent for the further development of sites for travellers within it was a material consideration on the facts of this case.
- Given that any such potential adverse consequences would be capable of being a material consideration in law, therefore, the contention that the Council erred in failing to have regard to them involves consideration of two distinct questions: (i) whether the Council could lawfully have treated the adverse consequences on other sites that the grant of planning permission might have as being a material consideration on the facts of this case and (ii), if they could have done, what is the consequence of their not having done so.
- The Council's case amounts to the contention that no reasonable authority could have regarded the grant of permission in this case as setting a harmful precedent as there was no real evidence of likely future applications for development of traveller sites in this area. The Claimant had drawn attention, as Mr Parkinson has done, however, to a number of plots within the area of ancient woodland that may be the subject of applications for permission for traveller sites. This is an area in which there appears to be a demand for pitches for travellers. Not only have planning permissions previously been granted for a number of pitches, there are plots advertised for sale for that purpose. There also appear to be a number of unauthorised mobile homes. Indeed the Council recognises the need for pitches for travellers in the borough. In my judgment, therefore, any judgment that the prospect of future applications for the development of land within the area designated as ancient woodland was a "mere fear or generalised concern" was not one a reasonable planning authority could reached. There was plainly a rational basis for concluding that there was such a prospect. Whether any and, if so, how many, such sites could be developed each with only limited harm to the ancient woodland, and what cumulative effect that might have on it, is not something that was apparently addressed by the Development Control Manager. In that respect, however, it is not irrelevant that ancient woodland is recognised to be an irreplaceable habitat. The National Planning Policy Framework, for example, recommends that "planning permission should be refused for development resulting in the loss of deterioration of irreplaceable habitats, including ancient woodland,...unless the need for, and benefits of, the development in that location clearly outweigh the loss": see paragraph . A cumulative impact on an irreplaceable habitat may not unreasonably be a concern when considering an application, just as it may be when considering the cumulative impact of development on the openness of the Green Belt. In my judgment it would not necessarily have been unlawful for any potential adverse consequences on the ancient woodland that the grant of planning permission might have by setting a precedent to have been treated as a material consideration in this case.
- The Council state that Development Control Manager did not consider the prospect of the decision setting a precedent for future harmful development. What is then the legal effect of that failure?
- That prospect is not a consideration that the relevant legislation expressly requires to be taken into account (as it does in the case, for example, of the desirability of preserving a listed building and its setting). Nor is it a necessary implication of the legislation that it is a consideration that must be considered whenever planning applications are determined. It is a consideration that the legislation permits, but does not require, to be taken into account in any particular case. Three different tests have been endorsed by the Court of Appeal for determining when a decision is invalid when regard has not been had to such a consideration in the determination of a planning application. These are (i) that the decision is invalid if no reasonable authority would have failed to take the consideration into account; (ii) that the decision is invalid if the court considers that there is a real possibility that the authority would have reached a different decision if regard had been had to it; and (iii) that the decision is invalid if the consideration is one that would have tipped the balance to some extent, or would have had some weight, one way or another, if it had been taken into account without necessarily being determinative.
- The approach in public law generally is that the decision is invalid if no reasonable authority would have failed to take a consideration into account to which the legislation permits regard to be had. "A decision to take into account (or not to take into account) a permissible consideration will only be challengeable on Wednesbury grounds": see Wade and Forsyth Administrative Law 11th ed at p324; cf R (Khatib) v Secretary of State for Justice  EWHC 606 (Admin) per Elias LJ at para  et seq; R (London Criminal Courts Solicitors Association v Lord Chancellor  EWHC 295 (Admin) per Laws LJ at -.
- In my judgment that approach was established by the House of Lords in In re Findlay  AC 318. In that case the complaint was that the Secretary of State had failed to consult the parole board before adopting a new policy governing the release of certain prisoners on licence. As Lord Scarman stated (in a speech with which the other members of the Appellate Committee agreed) at pp333-4,
"there is no express statutory requirement for such consultation: and...I find it impossible to imply any such requirement into the statute....
But this is not the end of the contention. Mr. Sedley also invoked the "Wednesbury principle" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 KB 223 ), submitting that no reasonable Home Secretary could have reasonably omitted to consult the board. He prayed in aid some observations of Cooke J. in the New Zealand case of CREEDNZ Inc. v. Governor General  1 N.Z.L.R. 172 . The facts of that case bear no resemblance to this case. But the judge did consider the question of the proper exercise of an administrative discretion in a situation where a statute permits but does not require consideration of certain matters. The judge said, at p. 183:
'What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.'
These words certainly do not support Mr Sedley's submission. But, and it is this upon which Mr. Sedley has to found his argument, the judge in a later passage at p. 183, line 33, did recognise that in certain circumstances, notwithstanding the silence of the statute, "there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers ... would not be in accordance with the intention of the Act."
These two passages are, in my view, a correct statement of principle."
Lord Scarman then rejected in that case "the submission of unreasonableness and with it the contention that failure to consult the board was unlawful."
- It follows, therefore, that, when legislation does not require (whether expressly or by implication), but permits, a specific consideration to be taken into account, that the decision is invalid if no reasonable person would have failed to have regard to it.
- In Derbyshire Dales District Council v Secretary of State for Communities and Local Government  EWHC 1729 (Admin),  1 P&CR 19, however, Carnwath LJ (as he then was), sitting in the Administrative Court, treated the second passage quoted by Lord Scarman as one raising "a question....of statutory construction..it is necessary to show that the matter was one which the statute expressly or impliedly (because "obviously material") requires to be taken into account "as a matter of legal obligation"": see at . That reading of Lord Scarman's speech, which Mr Parkinson adopts, in my judgment fails to reflect the fact that the second passage quoted is directed at a case in which the consideration in question is not one that the legislation requires to be taken into account expressly or by implication. Nor does this interpretation reflect the fact that the passage was taken by Lord Scarman as support for the use of the Wednesbury test for determining whether the decision is invalid for failing to take into account such a consideration, which was the test that he then applied immediately after his quotation of the second passage from Cooke J's judgment. That test is of course conditioned in its application by the legislation within which any decision falls to be made but it is not itself a question of statutory construction. Moreover, if the question is one of statutory construction, it is not clear (at least to me) what the question of statutory construction is or how the question is to be answered (if not by reference to the Wednesbury test as Lord Scarman did). Mr Parkinson submits that the question is whether something is "so obviously material" or so "fundamental to the decision" in a particular case that there is an obligation to consider it. But that is a question of judgment that depends on the circumstances of the particular case (not one of statutory construction). Moreover, if the court is to form its own view on the merits on that matter, as Mr Parkinson contends, the court will not be reviewing the legality of the decision by reference to the only currently established objective test (consistent with that function of review), namely the Wednesbury test, and there is plainly the risk, no doubt having heard argument that the decision maker did not, that a decision maker might not unreasonably have thought differently about the significance of the matter. If it is to avoid that risk, I am unclear how the outcome of this alternative approach may differ from that produced by the application of the Wednesbury test. In the event Carnwath LJ's decision was consistent with the interpretation of In re Findlay as imposing a Wednesbury test: see -.
- Mr Parkinson also sought to rely on the analysis by Holgate J in paragraphs [151(ii)] and [151(iv)] of his judgment in R (Luton Borough Council) v Central Bedfordshire Council  EWHC 4325 (Admin) in which he suggested that a decision would be invalid not only if the consideration was one no reasonable person would have failed to take into account but also if it was so obviously material to a decision particular decision that failing to consider it "would not accord with the intention of the legislation". I have difficulty reconciling what in my judgment is the correct analysis of In Re Findlay to be found in paragraph  of Holgate J's judgment with what is said in paragraph . But it is unsurprising in my judgment that Holgate J did not seek to distinguish them in application in paragraph  of his judgment. The relevant principles were not the subject of argument in the Court of Appeal in that case: see  EWCA Civ 537,  2 P&CR 19, at  and ).]
- More significantly, however, Carnwath LJ's interpretation of Lord Scarman's speech, which Holgate J was seeking to reflect, has not been that adopted by the Court of Appeal in other cases, which were not cited to Carnwath LJ. In those Lord Scarman has been treated as endorsing a Wednesbury test when considering whether there was any obligation to take into account considerations that legislation permits regard to be had to: see eg R (Jones) v North Warwickshire BC  EWCA Civ 315,  PLCR 31 at -; R (Khatun) v Newham LBC  EWCA Civ 55,  QB 37, at ; R (Al-Rawi) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1279,  QB 289, at -.
- This first, Wednesbury test has also been applied in planning cases by the Court of Appeal: see R (Jones) v North Warwickshire BC supra; R (Langley Park School for Girls Governing Body) v Bromley LBC  EWCA Civ 734,  1 P&CR 10, at  and . Mr Atkinson submits that it is the test that falls to be applied in this case.
- The second test, that a decision is invalid if a judge considers that there is a real possibility that the authority would have reached a different decision if the consideration had been taken into account, stems from the decision of the Court of Appeal in a compulsory purchase case, Bolton MBC v Secretary of State (1991) 61 P&CR 343. Mr Parkinson submitted that this test has been endorsed in a planning context by the Court of Appeal, for example, in R (Watson) v Richmond on Thames  EWCA Civ 513 at , and that it is the test that he submits should be applied in this case. The second test is not the same as the first. A consideration may be one that no reasonable person would have failed to take into account but it may be uncertain (in a judge's view) whether or not there is a real possibility that the decision would have been different if it had been taken into account. Conversely a judge may consider that there is a real possibility that the decision might have been different if regard had been had to a matter even when a reasonable person might have decided not to have regard to it. The views of potential consultees to which no regard is had when there is a decision not to consult may provide an example of such a case.
- The third test, that the decision is invalid if the consideration is one that the court considers would have tipped the balance to some extent, or would have had "some weight", one way or another, without necessarily being determinative, if it had been taken into account, was propounded by the Court of Appeal in R (Kides) v South Cambridgeshire DC  EWCA Civ 1370,  1 P&CR 19, at . This test was said to be no different in practice than the second test by the Court of Appeal in R (Watson) v Richmond on Thames supra at  for the purpose of their decision in that case. But it need not produce the same results: it is possible that, if taken into account, a consideration could have had "some weight" without there being a real possibility that the authority would have reached a different decision if they had taken it into account. Similarly the court might consider that the consideration would have had "some weight" without it being one no reasonable person would have failed to take into account.
- In my judgment the second test is inconsistent with the decision of the House of Lords in In re Findlay supra. It confuses the test for the legality of the exercise of a discretion with that for determining the materiality of any erroneous exercise of it and it is inconsistent with it. In practice it would also impose an onus on a claimant and a task on the court which both are ill-equipped to discharge.
- Although the Court of Appeal in Bolton MBC v Secretary of State for the Environment (1990) 61 P&CR 343 was referred to the judgment of Cooke J in CREEDNZ Inc v Governor General supra and, when giving his judgement (with which the other members of the court agreed) Glidewell LJ referred to some parts of it, the decision of the House of Lords in In re Findlay was not cited to the court.
- In that judgment Glidewell LJ stated that:
"The relative importance of the matter which has not been taken into account, is an aspect, and a very major aspect, of the question "was that consideration relevant?" or "should the decision maker have taken it into account?" I venture to suggest that from the authorities generally, and particularly those to which I have referred, one can deduce the following principles:
1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant...or that he has failed to take into consideration matters which he ought to take into account, which is the way in which Lord Greene put in Wednesbury....have the same meaning.
2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb "might", I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.
3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a very real possibility that it would make no difference to the decision and thus it is not a matter to which the decision maker ought to take into account.
4.... there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed N.Z. case.
5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account.
6. If the judge concludes that the matter was "fundamental to the decision," or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid."
- Mr Parkinson submits that, when Glidewell LJ referred in Point 3 to making "no difference to the decision" and in Point 6 to making "a difference to the decision", he was not referring to a different outcome. It would be sufficient if the consideration merely added some weight to the argument for or against. In my judgment, however, the different decision or the different "conclusion" (to which Glidewell LJ referred in Point 2) was a different outcome. That is also the sense in which he applied Point 5 in that case: see p354.
- In my judgment Points 5 and 6 are plainly inconsistent with the decision in In re Findlay which I have described above and as it has been interpreted by the Court of Appeal. For the reasons given above, the test for whether a consideration must be taken into account which the legislation does not (expressly or by implication) require to be taken into account is the Wednesbury test. As I have explained, it may not produce the same results as the test propounded in Points 5 and 6.
- In my judgment the second test also effectively confuses the test for the legality of the exercise of a discretion with that for determining the materiality of any erroneous exercise of it and it is inconsistent with that test. What matters should be regarded as relevant and taken into account when exercising a discretion is a matter for the judgment of the decision maker when the relevant legislation does not itself constrain that choice. Like the exercise of any other judgment not engaging Convention rights and certain European law issues, its legality falls to be reviewed by reference to the Wednesbury test: if no reasonable person could have had regard to a consideration, or if no reasonable person could have failed to take it into account, the exercise of that judgment is unlawful. If regard is had to such an irrelevant consideration or if there is a failure to consider something a decision maker was obliged to take into account, however, then the decision is invalid (and, prior to the enactment of section 31(2A) of the Senior Courts Act 1981, would normally have been quashed on a claim for judicial review) unless it is shown (the onus being on those asserting it to be the case) that the decision would necessarily have been the same regardless. In such circumstances the legal flaw is shown to be immaterial. The second test confuses the test for legality with the test for immateriality and it is inconsistent with it: under the test for immateriality the legal error will still be material if the court is uncertain whether the decision might have been different; on the second test, however, there is no legal error at all in such a case.
- By reversing the burden on the issue of the materiality of any omission, the second test also imposes an onus on the claimant to show that there is a real possibility that the decision would have been different had the consideration been taken into account (rather than imposing the onus on those who deny the existence of that possibility). In practice that involves putting an onus on the claimant that he or she may be ill-equipped to discharge and it imposes a task on the court that it is ill-equipped to undertake. It requires a claimant to show, and the Court to determine, what relative weight a decision-maker might have attached to a consideration that has not been considered. In the case of some decisions, of which decisions on planning applications are an example, the considerations which may, and are, taken into account are often incommensurable in nature and the weight that may have been given to each by the decision maker may not be separately identifiable. Indeed any assumption that a particular weight has been attached to each consideration in isolation may well be misconceived. Nor may the precise relative weight given be discernible. Moreover, even if the weight that was in fact attached to different considerations is identifiable, their relative weight could well have been different had account been taken of a further consideration. Requiring a claimant to show, and a court to judge, what weight might be given to a matter that has not been considered by the decision maker, whether that might have altered the relative weight given to other considerations had regard had been had to it and whether, if it had been considered there is a real possibility that decision would have been different, particularly where the decision maker is not an individual but a committee each of whose members may have had different views, is to impose a task both are ill-equipped to discharge. It is far different in practice from requiring those who assert that the decision would necessarily have been the same to satisfy the court of that contention. Moreover it will almost inevitably involve the court forming a judgment on what it considers the underlying merits of the case may be in substitution for that of the person in whom legislation has vested the decision.
- Mr Parkinson submitted that the second test had been endorsed by the Court of Appeal in the context of planning in R (Watson) v Richmond on Thames LBC  EWCA Civ 513. In that case Glidewell LJ's principles were described by Maurice Kay LJ (at ) as providing "a helpful means of determining what is material or relevant". Maurice Kay LJ recognised (at ) that the question of what "other material considerations" were required to be taken into account by section 70(2) of the 1990 Act was not a matter of determining what specific matters the legislation obliges the decision maker to have regard to as that section "leaves at large what other considerations may be material". In relation to such matters he treated the second test as being applicable in that case. There appears, however, to have been no argument as to whether the first test should have been applied or to In re Findlay or R (Jones) v North Warwickshire BC supra by which the Court of Appeal was bound. It is also right to note that the second test was applied by the Court of Appeal in Secretary of State for the Environment v Edwards (PG) (1995) 69 P&CR 607. But no reference was made in the judgment of Roch LJ to In re Findlay. Carnwath LJ considered in Derbyshire Dales DC v Secretary of State for Communities and Local Government that, although justifiable on the basis of a Wednesbury test, the approach in Edwards was inconsistent with that decision of the House of Lords and other authorities: see at -.
- The third test is that the decision is invalid if a judge considers that the consideration is one that would tip the balance to some extent, or would have "some weight", one way or another, without it necessarily being determinative, had it been taken into account. This test was propounded, without any apparent citation or consideration of any authority, in R (Kides) v South Cambridgeshire DC  EWCA Civ 1370,  1 P&CR 19, at . The Court of Appeal in R (Watson) v Richmond on Thames LBC supra (see at ) regarded the distinction between this test and the second test as being "too fine to matter for present purposes" when considering the appeal in that case. As I have explained, however, it might lead in other cases to different results. Quite apart from other objections there may be to it (including the requirement that the court must form a judgment about what weight (if any) might be attached to the matter that was not considered and whether that might have tipped the scales "to some extent" one way or another and might have had "some weight", however, in my judgment the weight of authority is in any event inconsistent with this test.
- Accordingly the question is whether the prospect of the decision impugned setting a precedent for future harmful development was a consideration which no reasonable planning authority would have failed to take into account in the circumstances of this case when determining whether or not to grant planning permission.
iv. Application of the test in this case
- Mr Parkinson submits that the precedent created by the decision is one that permission will be given in the light of the need for gypsy and traveller sites for further such development provided that it results only in limited damage to the ancient woodland in the area.
- To be of concern such developments cumulatively must be likely to result in unacceptable damage to that habitat. For this to be a matter that no reasonable authority would fail to treat as a material consideration in the decision impugned, it is not enough for there to be a prospect merely of future applications for permission for such sites within the area designated as ancient woodland. It may be inevitable that they would cause harm that is neither similarly limited nor outweighed by the need for such sites. Such applications the Borough Council could refuse consistently not merely with the decision impugned but also with the earlier application they refused in 2014 that also related to Milee. A major consideration in the refusal of the earlier application (as the assessment that led to the refusal shows) was the possibility of the regrowth of the habitat if the site was left undeveloped. By contrast the proposed development was assessed not merely not to involve any damage to any trees or their roots but also not to involve the laying of additional hard surfacing. The impediment to regrowth was already lawfully in place. The Claimant has not alleged, nor provided any evidence, that there any other sites which could be developed each with only such limited harm to the ancient woodland, much less what cumulative effect their development might have on it. There are other constraints on development in this area but, even ignoring those, in my judgment, the Claimant has not discharged the onus on him, therefore, to show that no reasonable authority would have failed to take the prospect of the decision setting a precedent for future, cumulatively harmful development into account in the circumstances of this case when determining whether or not to grant planning permission.
- As originally formulated, the Claimant's claim on the precedent issue suffered from the problem that the decision impugned is not the first granting permission for a gypsy or traveller site along Nickley Wood Road. If a precedent for such development in the area existed, it had been set before but, as the refusal of the proposed development at Milee in 2013 showed, such grants did not prevent the Council refusing permission for a development having an unacceptable impact inter alia on the area of ancient woodland. It is, of course, not necessarily an irrational approach for a planning authority to treat each application on its own individual merits. Mr Parkinson understandably perhaps, therefore, put the Claimant's case on the basis that the decision set a precedent for granting permission for gypsy and traveller sites when in each case only limited harm to the area of ancient woodland may result.
- In reaching my conclusion on the precedent issue I have assumed (as Mr Parkinson asserted) that the decision impugned was the first in which permission for a gypsy and traveller site was granted when there was any recognition that any harm to the ancient woodland would result. This was not an allegation raised in the claim form or even Mr Parkinson's skeleton argument but was first developed by Mr Parkinson orally. The Council had no opportunity to address that factual contention in evidence and Mr Atkinson had no opportunity to take proper instructions on whether or not it was in fact correct. Given my conclusion on the way Mr Parkinson put the Claimant's case on the assumption that his assertion was correct, however, I need not consider whether the point was one in any event open to Mr Parkinson to take. I note that Mr Atkinson raised no objection to me considering it.
- For the reasons given, the claim on Ground 3 fails.
GROUND 4: CONDITION 2
- Mr Parkinson contended that, as the proposed development was only acceptable in policy terms given the need for gypsy and traveller sites, a key issue should have been whether condition 2 was enforceable and achieved its stated objective. He submits that the Council failed to do so as it was required to do: see R (Helford Village Development Company Limited) v Kerrier District Council  EWHC 400 (Admin) at -. It also failed to consider whether a personal permission should have been granted instead.
- Condition 2 is plainly such as to be capable of enforcement: it cannot be said to be so uncertain in its terms that it is invalid. The assessment stated that "the occupation can be strictly controlled via a planning condition restricting the occupation to those who comply with the definition of a gypsy and traveller." But, so Mr Parkinson submitted, that failed to recognise the practical difficulties in determining whether any individual falls within the definition and the fact that the authority does not regularly monitor compliance, acting only if breaches of planning conditions come to their attention (as revealed by an answer given after the decision impugned to a Freedom of Information request).
- I have considered the definition of gypsies and travellers in the Glossary of Planning Policy for traveller sites which the second condition incorporates. The assessment states that occupation can be strictly controlled through use of the condition using that definition. There is no basis for any contention that that was a conclusion that no reasonable authority could have reached. Whether someone has a "nomadic way of life" or has "ceased to travel temporarily" for certain specified reasons no doubt involves considering the facts but involves no greater difficulties in principle than some other standard planning conditions. As the Council point out, they have power to serve a planning contravention notice under section 171C of the Town and Country Planning Act 1990 to obtain such information in writing as they may need from any person having an interest in the land or using it for any purpose in order to determine whether any breach has occurred. If enforcement action is taken, the onus would be on those contending on appeal that no breach of the condition had occurred to make good that claim. The fact (if it be so) that an authority only acts if they have notice of a potential breach of a planning condition (rather than actively seeking to find such breaches) does not mean that the condition could not reasonably be imposed or that no reasonable planning authority would have imposed the condition without first considering what the likelihood of breaches coming to their attention would be.
- This case is plainly distinguishable from the position in R (Helford Village Development Company Limited) v Kerrier District Council supra. In that case enforcement of the condition imposed would not have achieved its objective (preventing the use of part of the foreshore). In this case enforcement of the condition would achieve its objective.
- Although Mr Parkinson submits that the Council should have considered granting only a personal permission, the need which the permission granted was intended to meet was that of sites for gypsies and travellers, not that of any specific individuals. As the assessment stated, "it is the status of the future occupiers of the site which is required to be considered here."
- The claim on Ground 4 accordingly fails.
- For the reasons given above, the Claimant has established the first ground on which the claim is made.
- Essentially what I have found is (i) that the Development Control Manager should have concluded that local plan policy EN32 required permission to be refused given the harm to the ancient woodland (which the assessment recognised) that the proposed development would cause and (ii) that she should not have concluded that the proposed development was in accordance with the development plan as a whole on balance, given the conflict she appears to have recognised with Local Plan policy GP12 (and which she should have recognised with Local Plan policy EN32 which is in stronger terms than policy GP12), having regard to policy CS14 in the Local Development Framework Core Strategy. That policy did not permit her to take into account the need for further gypsy and traveller sites. That is not to say that the Development Control Manager failed to take into account the limited harm to the ancient woodland that the proposed development was assessed to cause or that she was not entitled in reaching her decision to take the need for further gypsy and traveller sites into consideration as another material consideration. The assessment on the basis of which she took her decision was not flawed on the basis of a failure to take into account relevant matters on their merits independently of the development plan. It was flawed on the basis of how those matters fell to be classified in terms of the development plan.
- Previously the question in terms of relief was whether the decision would necessarily have been the same had the flaws in the decision not occurred. On that basis I would not have been satisfied that it would necessarily have been the same.
- Section 31of the Senior Courts Act 1981, however, now provides that
"(2A) The High Court-
(a) must refuse to grant relief on an application for judicial review,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest."
- This provision raises a number of as yet unresolved questions. But, for present purposes, when final relief is being considered, in my judgment "the conduct complained of" must refer to the conduct complained of insofar as the conduct is found to be unlawful. It is true that section 31(8) defines the relevant conduct as "the conduct (or alleged conduct) of the defendant which the applicant [for judicial review] claims justifies the High Court granting relief." But no applicant can claim that conduct that the Court has not found unlawful justifies the grant of any relief.
- In this case, had the conduct found to be unlawful not occurred, the Development Control Manager would have treated the proposed development as one that fell to be refused in accordance with policy EN32 as well as regarding it as being contrary to policy GP12. She would also have treated the proposed development as one that was not in accordance with the development plan as a whole. She would have had to decide, therefore, whether those policy matters and such limited harm as she found that the proposed development would in fact cause was outweighed by the need for further gypsy and traveller sites. That need, the assessment stated, had to be given "significant weight" in this case. What the Development Control Manager might have done in such circumstances depends ultimately on what additional weight (if any) she would have accorded to the limited harm that the proposed development would cause in the light of these policy considerations.
- In my judgment, although the court must consider section 31(2A) of its own initiative when considering final relief (as opposed to the grant of permission when it may have a discretion whether or not to do under section 31(3C)), the court must still be satisfied on the balance of probabilities that it is highly likely that (in this case) permission would have been granted had the unlawful conduct found had not occurred. In determining whether it appears that it is highly likely that would have occurred, the question is not whether it is highly likely that the judge hearing the case would have taken the same decision. Section 31(2A) of the 1981 Act does not require the court to treat itself as the decision maker. Moreover the court must act on the evidence it has or on reasonable inferences from it.
- In this case there is no need to address any evidence that the Council has filed on the point, or to decide what to make of any such evidence provided after the event, since the Council has filed no such evidence. Further such evidence and documents before the Court provide no basis on which to infer what additional weight (if any) the Development Control Manager might have attached to the objections to the development in the light of the policy considerations to which I have referred. That is not to say that, in some cases at least, the answer may not be clear from the material before the court. But in this case it is not. In those circumstances I am not satisfied on the balance of probabilities that it is highly likely that the Development Control Manager would still have treated the significant weight that was given to the need for further gypsy and traveller sites as outweighing the objections to the proposed development once the policy considerations to which I have referred were taken into account. I cannot be satisfied, therefore, that it is highly likely that, if the conduct I have found to be unlawful had not occurred, permission would nonetheless have been granted for the proposed development.
- This claim accordingly succeeds on the first ground and the decision to grant planning permission is quashed.
Note 1 see article 35(1) of the Town and Country Planning (Development Management Procedure)(England) Order 2015 (as amended by article 7 of the Town and Country Planning (Development Management Procedure)(England) (Amendment) Order 2013. [Back]
Note 2 although the decision in this case was reversed in the Court of Appeal, that was on grounds that do not affect these principles: see  EWCA Civ 45,  WLR 3538. [Back]
Note 3 see section 38(2)(b) of the Planning and Compulsory Purchase Act 2004. [Back]
Note 4 see section 37(3) of the Planning and Compulsory Purchase Act 2004. [Back]
Note 5 see section 17(3)of the Planning and Compulsory Purchase Act 2004. [Back]
Note 6 see regulation 13(1) of the Town and Country Planning (Local Development)(England) Regulations 2004; regulation 8(2) of the Town and Country Planning (Local Planning)(England) Regulations 2012. [Back]
Note 7 see regulation 13(2) of the Town and Country Planning (Local Development)(England) Regulations 2004. [Back]
Note 8 In that case only the policy and not the text had been preserved when the local plan ceased to have effect and in this case the text is not seeking to add a requirement to Policy CS14. [Back]
Note 9 This might be said to be a reason why no further policy was required to govern the position until the development plan document was adopted. [Back]
Note 10 As In re Findlay shows and as Cooke J (as he then was) explained in CREEDNZ by reference to Lord Greene’s judgment, however, a permissible consideration is one that is relevant, otherwise it could not lawfully be taken into account. But that does not necessarily mean that there is any obligation to take it into account. [Back]
Note 11 Carnwath LJ also declined to apply it on the basis of such inconsistency in Derbyshire Dales DC v Secretary of State for Communities and Local Government supra see at  et seq. Mr Parkinson nonetheless contended that there was no difference between a matter being “obviously material” or “fundamental” to a decision and one that there is a real possibility that it would have made a difference to the decision if it had been taken into account. The two tests are not the same: a matter might (in a judge’s view) be “obviously material” without giving rise to that possibility. There may equally be such a possibility even if a judge is uncertain whether the matter is “fundamental” to the decision. [Back]
Note 12 unless and until it is superceded (if it ever is) by a proportionality test. [Back]
Note 13 see eg Simplex GE Holdings v Secretary of State for the Environment (1989) 57 P&CR 306 per Purchas LJ at p327 and Staughton LJ at p329; R (Smith) v North East Derbyshire Primary Care Trust  EWCA Civ 1291,  1 WLR 3315 per May LJ at ; Secretary of State for Communities and Local Government v South Gloucestershire Council  EWCA Civ 74 per Lindblom LJ at . [Back]
Note 14 see footnote 13 above. [Back]
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