Planning: Secretary of State should have allowed parties further representations

In the High Court case of Gladman Developments Ltd v Secretary of State for Communities And Local Government & Anor [2017] the Secretary of State rejected the Inspector’s recommendation to grant planning permission on appeal.

Gladman’s first ground for seeking judicial review was that the Secretary of State proceeded unfairly and irregularly by relying on “facts”, set out in paragraphs DL29 and 30 of his decision letter, obtained by him subsequent to the Inspector’s report from the Council’s website, without complying with Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 [S.I.2000 No. 1624] (“the 2000 Procedure Rules) and providing an opportunity to the parties to challenge those facts and make representations.

The court said Secretary of State was taking into account new evidence which led him to a materially different factual finding: namely, that the housing land supply fell in the bracket of 3.7 to 5 years, rather than the 3.73 years as found by the Inspector.

Had representations from the parties been invited, the Secretary of State would have been informed that (1) the LPA did not “currently claim a more than 5-year supply”, and (2) the real contest between the parties was between Gladman’s figure of 3.65 years and the LPA’s figure of 4.15 years.

Rule 17(5) of the 2000 Procedure Rules had been breached. Both sub-paragraphs (a) and (b) were applicable, although the principal focus should be on (b).

The Secretary of State had differed from the Inspector on a matter of fact (a).

The reason why he had done so was because he had taken into account new evidence (b).

“Rule 17(5) [was] not activated if the Secretary of State discovers new evidence but decides at that juncture not to take it into consideration (see the opening words of (b)), but if he does, or is minded to, he must at that stage seek further representations from the parties if he considers that the new evidence is likely to form the basis, in whole or in part, for the ultimate recommendation reached. The Secretary of State does not have to be satisfied that the new evidence would constitute the sole reason for a different recommendation; it merely has to form part of the decision-making process.”

Furthermore, the Rule says “disposed to disagree” which imported a lower threshold.

In summary Rule 17(5) would not apply if the Secretary of State has reached the firm and fixed conclusion that the new evidence will not be taken into account or was clearly immaterial; otherwise, however, it does apply.

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