In brief

The case of Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2017] EWHC 2057 (Admin) concerned an appeal to the High Court of Justice in the United Kingdom against the decision of the Secretary of State of Communities and Local Government to grant conditional planning permission for a residential development in the village of Newick.

Planning permission was refused by the local planning authority in the first instance. The Applicant for the planning permission appealed the refusal to the Secretary of State and it decided to grant conditional planning permission for the Newick development.

The Claimants in the appeal argued that the decision to grant the planning permission should be quashed because the Secretary of State should have made his decision consistent with his earlier decision in a comparable appeal, even though the parties did not supply the earlier decision. Relevantly, in the earlier decision concerning a development in a nearby village of Ringmer, the Secretary of State found that a planning instrument was not out-of-date. In the decision concerning the Newick development, the Secretary of State found that the same planning instrument was out-of-date. The decisions of the Secretary of State were contained in letters dated less than three months apart.

The case is interesting, despite being outside of the Australian jurisdiction, because it states that whether a matter is “obviously material” is not a relevant test for determining whether a decision-maker has acted as a reasonable decision-maker in the circumstances. The Court preferred a simpler test, being to ask whether the matter is one that no reasonable decision-maker would have failed to take into account.

The Secretary of State refused to give planning permission for the Newick development for reasons incongruent with his decision in the Ringmer development only three months earlier

The planning framework was relevantly as follows:
  • Lewes District Local Plan (LDLP) – a local planning instrument for the villages of, relevantly, Newick and Ringmer, adopted in 2003 and for the plan period to 2011. The LDLP contained Policy CT1 which required that development be contained within certain planning boundaries identified on a map.
  • Lewes District Local Plan – Part 1 – Joint Core Strategy (JCS) – a local planning instrument also for the villages of, relevantly, Newick and Ringmer, adopted in May 2016 and for the plan period 2010 to 2030. The JCS contained Spatial Policies which, relevantly, required a minimum number of additional dwellings during the plan period in identified strategic sites and contained a site allocation process for more sites where required. Minimum additional dwelling requirements for Newick were to be met in identified strategic sites.
  • Newick Neighbourhood Plan (NPP) – a local planning instrument with more nuanced planning outcomes for the village of Newick adopted in July 2015 and covering the period from 2015 to 2030. The NPP allocated sites to meet the minimum amount of new housing.
The decision-making process for the Secretary of State was relevantly as follows:
  • Inquisitorial hearing – a public local inquiry chaired by an inspector at which interested parties make submissions about whether planning permission should be approved or refused.
  • Investigator’s report – a report prepared by the inspector chairing the public local inquiry containing recommendations about whether planning permission should be approved or refused.
  • Secretary of State’s decision letter – a letter given by the Secretary of State, after considering the investigator’s report, either approving or refusing planning permission.
Some of the policies in the JCS expressly superseded policies in the LDLP. Policy CT1 was not superseded. As a legal consequence, the JCS could not have been lawfully adopted by the Council unless the policies in the JCS were consistent with, relevantly, Policy CT1. 

The Secretary of State refused to give planning permission for the Newick development on the grounds that Policy CT1 could not be relied upon as it was out-of-date because it restricted new housing to sites within the identified planning boundaries, which was inconsistent with the strategic aspirations in the JCS to develop within the identified strategic sites and other permissible sites. As a legal consequence, the “tilted balance” provisions of the National Planning Policy Framework could be relied upon which presume in favour of development where relevant policies are out-of-date and any adverse impacts of approval “significantly and demonstrably” outweigh the benefits.

In contrast, the investigator’s report for the earlier Ringmer development stated that he “found the JCS as a whole sound” and that “Policy CT1 should be regarded as up-to-date” (at [25]). Consistent with the investigator’s report, the Secretary of State issued his decision letter on 19 September 2016 and in it stated that “Policy CT1 should be regarded as up-to-date” (at [27]). The “tilted balance” was therefore not invoked.

The Secretary of State issued his decision letter approving the Newick development on 23 November 2016 and apparently ignorant of the earlier decision about the Ringmer development (at [30]).

The Court held that no reasonable decision-maker in the circumstances could have ignored the Ringmer decision when deciding whether to give planning permission for the Newick development

There was no requirement expressed in an enactment or by necessary implication that the Secretary of State take the Ringmer decision into account when determining whether to give planning permission for the Newick development.

The Applicant for the planning permission argued that the Secretary of State’s decision was lawful, and could not be displaced on the basis that he failed to take into account the Ringmer decision because that decision was not placed before him by the parties.

The Claimants in the appeal argued that the Ringmer decision was “obviously material” to the Newick decision and, as such, should have been taken into account. The Claimants in the appeal argued that the Secretary of State’s failure to have regard to the Ringmer decision offended the “obviously material” test derived from the case law and was therefore unlawful.

The Court reaffirmed that the relevant test for invalidity was whether a reasonable decision-maker in the circumstances would have failed to take the relevant matter into account (at [149]). The Court held that the Ringmer decision was a relevant matter for the Newick decision and, therefore, that the Secretary of State’s decision about the Newick development was invalid having failed to take into account his earlier determination about the currency of Policy CT1.

The Court dismissed the “obviously material” test as being appropriate when determining whether a decision-maker has acted as a reasonable decision-maker in the circumstances

The Court held that the “obviously material” test was not a desirable test because it could tempt the Court to decide based on what in its view was “obviously material”. To cast the test as being whether something is “obviously material” would require the Court to firstly determine how significant or obviously material the matter was and secondly the likely availability of the matter, and that a more complicated test formulation was likely to mislead or produce an incorrect result.

The Court preferred a simpler test, that being to “ask only whether the matter is one that no reasonable decision-maker would have failed to take into account in the circumstances” (at [151]).

Applying that test to the case, the Court held that the Secretary of State, acting as a reasonable decision-maker in the circumstances, should have taken reasonable steps to ensure that his decision about the currency of Policy CT1 was consistent with his other decisions about its currency.

The Court therefore held that the Secretary of State’s determination that Policy CT1 was out-of-date was invalid and that the “tilted balance” therefore should not have been applied. The Secretary of State’s decision was therefore quashed and, absent sufficient grounds to grant planning permission, planning permission was refused. 

In the Queensland context, it is our view that if the Planning and Environment Court was required to adjudicate a similar dispute under the Planning Act 2016, the earlier determination about the currency of Policy CT1 may be considered an "other relevant matter" to which an assessment manager could have regard when assessing impact assessable development under section 45(5)(b) of the Planning Act 2016.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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