Planning: Report on emerging Core Strategy was material consideration

In planning the duty to have regard to material considerations applies up to the time the decision maker (in an appeal the inspector) makes his decision.

Under rule 19 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000, the decision on the appeal is made when the parties are notified of the decision in the decision letter.

That means that up until that time the appeal inspector is seized of the appeal even though he may have submitted his or her decision letter to the Planning Inspectorate (“PINS”) some weeks earlier.

In Wiltshire Council v Secretary of State for Communities and Local Government & Ors [2015] the report of another inspector on the emerging Wiltshire Core Strategy (“EWCS”) cast doubt on the admission made by the Council in the appeal that it did not have five years housing land supply and/or updated the assessment from one of shortfall at the inquiry to one where a different housing situation now appeared likely to be the case.

In short, the report affected the position on housing needs in Wiltshire which were one of the main issues in the appeal. The report also advanced the Core Strategy nearer to adoption so increasing the weight to be attached to it.

The final report on the EWCS was sent to the case officer in the appeal at PINS by email at 0928 on 3 December 2014. It was not forwarded to the relevant appeal inspector before he sent in his decision at 1610 also on 3 December 2014. His witness statement confirmed that at no time was it forwarded to him.

The High Court said that the appeal inspector in this case did not have to follow the findings of his colleague but he needed to take them into account and express reasons for how he dealt with those findings.

The fact that PINS had not even given him the chance to consider them at a time when his decision had yet to be issued meant that that decision to grant planning permission on appeal had failed to have regard to a material consideration and had to be quashed.

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