Planning Appeal: mistake of fact gave rise to mistakes of law

The case of Ecotricity Next Generation Ltd v Secretary of State for Communities and Local Government & Anor [2015] was an application made under s.288 of the Town and Country Planning Act 1990 to quash the decision of the Inspector to refuse an appeal to grant planning permission for a wind energy development including the erection of one wind turbine.

In East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] , the Court of Appeal gave guidance on the approach under Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990:

“Parliament’s intention in enacting s.66(1) was that decision makers should give ‘considerable importance and weight to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise’.”

A failure properly to understand and apply a relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration and will, therefore, be an error of law, open to challenge in the courts.

In the Ecotricity Next Generation Ltd case the local church was a Grade 1 listed building. The Inspector mistakely found that the church tower would be seen in the same views as the turbine and so “the turbine would be apparent in the setting of this heritage asset.”

Whether or not “the church tower would be seen in the same views as the turbine” was not a matter of planning judgment within the exclusive domain of the decision maker.

A decision maker is under a duty to properly inform himself of the information relevant to his decision.

A mistake on an established fact which was uncontentious and objectively verifiable giving rise to unfairness is a separate head of challenge on a point of law if it can be shown that the mistake had played a material, though not necessarily decisive, part in the tribunal’s reasoning.

The Inspector’s finding that “the church tower would be seen in the same views as the turbine”, was “a mistake as to an established fact which was uncontentious and objectively verifiable” and played a material part in the Inspector’s reasoning.

The error gave rise to unfairness to the Claimant and amounted to an error of law.

Or it could be said that the Inspector fell into error by failing to properly inform herself of evidence indicating only one location at which there could be a view of the church tower, behind the proposed turbine – and then only distant.

Having regard to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, there was at least the possibility that the overall balance would have been different if the Inspector had proceeded to determine the appeal on the correct factual basis. Accordingly the High Court quashed the Inspector’s decision to refuse the appeal.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.