On an application for judicial review it is not for the court to second guess what the outcome of a planning appeal would have been if certain errors of law had not been made.
If that court finds errors of law and is inclined to exercise its discretion not to grant relief, it must be satisfied that the decision-maker would necessarily have reached the same decision even if the legal error had not occurred.
It is insufficient for the court to think that the decision:
– probably would have been the same, or
– very likely would have been the same, or
– almost certainly would have been the same
but for the decision-maker’s error.
It must be persuaded that the decision would necessarily have been the same.
In the Court of Appeal case of Secretary of State for Communities and Local Government v South Gloucestershire Council & Anor  the planning inspector, on appeal, misconstrued the implications of paragraphs 47 and 49 of the National Planning Policy Framework which require there to be a five-year supply of land for housing in the council’s area, and planning permission was granted for a mobile caravan to the disadvantaged applicant and his family.
At first instance the High Court exercised its discretion to quash the planning permission.
On appeal the Court of Appeal said the High Court should not have quashed the planning permission.
– The personal circumstances of the applicant,
– the fact that the planning permission would have been merely personal to him, and
– the planning permission’s negligible impact either way on the objectively assessed housing
requirement for the area
were all factors which meant the planning inspector would have granted the planning permission even if the errors of law had not been made at 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.