Keep Chiswell Green v Secretary of State for Levelling Up, Housing and Communities & Ors

In dealing with the appeals, the First Defendant was required by section 70(2)(c) TCPA 1990 to have regard to material considerations. The Claimant submitted that the First Defendant unlawfully failed to have regard to a material consideration, namely the Arup Review, which was published in June 2023, after the Inquiry had closed (on 9 May 2023), and after the First Defendant recovered the appeals (on 1 June 2023), but before the First Defendant’s decision was made (on 22 March 2024).

The Arup Review was an “obviously material” consideration, applying the principles set out in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52, as it superseded Part 2 of the SKM Green Belt Review (“the SKM Review”), which both the Inspector and the First Defendant treated as a material consideration on which they placed importance. It was also realistically capable of causing the First Defendant to reach a different decision and the First Defendant knew of the Arup Review and could have obtained it. The principles established in R (Kides) v South Cambridgeshire DC [2002] EWCA Civ 1370 and R (Hayle Town Council) v Cornwall CC [2023] EWHC 389 (Admin), and followed in the context of Inspectors’ decisions in Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 597 (Admin) and Wiltshire Council v Secretary of State for Communities and Local Government [2015] EWHC 1261 (Admin), were applicable to the circumstances of this case.

Further or alternatively, the First Defendant failed to take reasonable steps to acquaint himself with the relevant information to enable him to determine the appeal, in breach of the duty of sufficient inquiry: Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, per Lord Diplock at 1065B. The Council informed the Inspector that the Arup Review would be available shortly, in June 2023, and the Second and Third Defendants objected to its inclusion in the appeals in their representations to the First Defendant in January and February 2024. The First Defendant acted irrationally in not obtaining a copy of the Arup Review, considering it, and asking the parties for their views on it.

Contrary to the Defendants’ submissions, the Claimant was not barred from relying upon the Arup Review because they did not seek to rely upon it before the First Defendant made his decision, particularly since they were unrepresented.

If the Arup Review was held to be a mandatory material consideration, or if the First Defendant failed to discharge the duty of sufficient inquiry, the Court cannot be satisfied that, applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041, the outcome in the appeals would necessarily have been the same even if the error of law had not occurred because the Arup Review reached different conclusions to the SKM Review.

It is convenient to consider the Defendants’ submissions together because of the overlap between them.

The Defendants submitted, as a preliminary issue, that the Claimant was not entitled to advance a submission based on new material and argument that was never placed before the First Defendant. There were no exceptional circumstances to justify a departure from the standard approach. See West v First Secretary of State [2005] EWHC 729 (Admin) at [42-43]; Dyason v Secretary of State for the Environment [1998] 2 PLR 54, at [62E]; and Mead Realisations Limited v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 279 (Admin), at [182].

Alternatively, if the Claimant was permitted to proceed with the claim, the First Defendant was not obliged to take the Arup Review into account in the determination of the appeals. Applying the principles set out in Friends of the Earth Ltd [2020] UKSC 52, [2021] PTSR 190, per Lord Hodge and Lord Sales at [116] – [121], the Arup Review was not a mandatory material consideration, being something that the decision-maker was either required by legislation and/or policy to take into account, or was “so obviously material” as to require consideration.

The First Defendant acted rationally, in the exercise of his discretion, in not taking the Arup Review into account in circumstances where it was not relied upon by the Claimant, or the Council (by whom it was commissioned), or even supplied to the First Defendant.

Furthermore, the purpose of the Green Belt reviews was to assess the contribution of different areas towards Green Belt purposes, for the purpose of plan-making. They did not address the main issue identified by the Inspector and the First Defendant, namely, whether the harm by reason of inappropriateness, and any other harm, was clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify development (IR/525(e), DL/16). Therefore the Inspector found that the conclusions in the SKM Review could not be “directly applied to the appeal proposals” (IR/531; accepted at DL/17). Whilst the Inspector had regard to the SKM Review, he made his own assessment of the suitability of the appeal sites for the proposed development, and came to his own judgment, at IR/527 – 612. As a result, the First Defendant had the benefit of a detailed report from the Inspector who had considered the Green Belt issues following a site inspection, oral evidence, written evidence and submissions. This case-specific consideration removed any need to consider the higher-level and more generalised analysis in the Arup Review.

In regard to the Tameside duty, as set out in R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647, per Underhill LJ at [70], the First Defendant was rationally entitled to decide the appeals without making further inquiries into the Arup Review. The Arup Review was part of the emerging plan process, it had not been tested by independent examination or approved by Examining Inspectors, and it was not relied upon by the Council or the Claimant in resisting the appeal. The Council and the Claimant did not take issue with the Second and Third Defendants’ objection to its inclusion in the appeal.

Under rule 17(4) of the Inquiries Procedure Rules 2000, the First Defendant could disregard any representations or evidence or other document after the close of the inquiry. If he decided to take new material into consideration, he had to give persons entitled to appear at the inquiry an opportunity to make written representations or to ask for the re-opening of the Inquiry. At DL/9, the First Defendant decided that the representations made inter alia in respect of the Arup Review in the post-inquiry correspondence did not warrant further investigation or necessitate additional referrals back to the parties.

Alternatively, if the Arup Review was a mandatory material consideration, relief should be refused because, applying the Simplex test, the outcome in both appeals would necessarily have been the same even if the error of law had not occurred for the following reasons.

The Inspector found that the concerns about methodology in the 2nd Stage SKM Review raised by the Examining Inspectors had no bearing on these appeals (IR/531). The finding in the 2nd Stage SKM Review that Appeal A Site was the least sensitive part of sub-Area 8 was not a factor listed by the First Defendant as weighing in favour of Appeal A (DL/38-38). Appeal B Site was not recommended for release from the Green Belt in either the 2nd Stage SKM Review or the Arup Review.

The Council had not approved or adopted the findings in the Arup Review, and the Council’s Work Programme indicated that both it, and the draft policies it would inform, would not be considered until the end of September 2024. At the Planning Policy and Climate Committee on 26 June 2023, officers had advised that the Council that the Arup GBR’s recommendations were “not determinative”, meaning that in September 2024 all of its recommendations might be rejected. The 2nd Stage SKM Review was found to be flawed by the Examining Inspector, which demonstrated why any Green Belt review can be afforded only limited weight until it has been adopted following independent examination.

In September 2023, during a consultation on the emerging local plan, the Claimant objected to the Arup Review, complaining in its formal submission that “the Green Belt Review and site selection documents were presented to the committee on 26^th June 2023 (published on 16^th June), which did not give councillors, interested parties and the public sufficient time for proper scrutiny of the selected sites before the councillors were put under considerable pressure at 10^th July meeting to approve the launch of the Regulation 18 public consultation.”

The Arup Review was considered in another appeal (Footnote: ²) concerning a site at Ragged Hall Lane, Chiswell Green, in which the Claimant appeared as an Interested Party. In a Decision Letter dated 3 May 2024, the Inspector found that the Arup Review should be given limited weight. He stated:

“15.

It was agreed at the hearing that the Green Belt studies I have before me, commissioned by the Council at various stages for plan preparation should be given weight in connection with their purpose. As such, whilst they are tools for the preparation of the plan, they are of limited direct relevance to the appeal proposal, given the scale of the land parcels they address. Further, KCG sought to suggest that the most recent, 2023, studies should themselves be given limited weight as they had yet to be reviewed, amended if necessary and then approved by the Council for plan making.”

The Claimant subsequently wrote to the Inspector, on 8 May 2024, indicating that it was not its view that the Arup Review might be found to be unsound nor that it should only be given limited weight, and querying the basis of paragraph 15 of the Decision Letter. However, it accepted that the Arup Review had yet to be reviewed, amended if necessary, and then approved by the Council for plan making.

The Arup Review was part of the evidence base for the emerging local plan, not a report in the appeals. It could not and did not consider the impact of the proposed development or whether Green Belt harms were outweighed by the benefits of housing.

The Inspector provided a detailed report with a case-specific analysis, following a full Inquiry. The First Defendant found harm to the Green Belt at both sites to which he attributed substantial weight (DL/18-19). Nonetheless he found that the benefits of the proposed development clearly outweighed that harm and “very special circumstances” were established, applying the Framework. The Claimant had not demonstrated that the Arup Review would have displaced the Inspector’s analysis or made any difference to the First Defendant’s conclusions.

The general rule is that it is incumbent on the parties to a planning appeal to place before the decision maker the material on which they rely: West v First Secretary of State [2005] EWHC 729 (Admin), per Richards J., at [42]. A party to a planning appeal must be expected to tell the decision maker all he wishes to tell them: West at [43]. In general, the determination of a planning appeal does not require the decision maker to go beyond proper consideration of the material put forward by the parties: West at [44].

In Mead Realisations Limited v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 279 (Admin), Holgate J. identified this as an important principle, given the strong public interest in the finality of planning appeals. He said, at [178] – [182]:

“178.

I can see that if Redrow had submitted to the Inspector that there was a substantial need for housing which could not be met entirely on sequentially preferable sites (and even more so in the next 5 years), so that additional sites with a similar or worse flood risk would need to be developed, that would be a significant factor to be addressed in the overall planning balance. It could reduce the weight to be given to the failure to satisfy the sequential test. Here the Inspector gave that failure “very substantial weight” (DL 100). It would have been arguable that the flood risk implications of satisfying the unmet need for housing land was an “obviously material consideration”, such that it was irrational for the Inspector not to have taken it into account (R (Friends of the Earth Limited) v Secretary of State for Transport [2021] PTSR 190 at [116] to [120]). Alternatively, it could have been said that there was a failure to comply with the duty to give reasons in relation to a “principal important controversial issue” between the parties.

179.

The problem faced by Redrow is that, as Mr. Simons accepted, this argument was not put before the Inspector. Redrow did not consider it to be material, let alone obviously material. It was not raised as a substantial issue between the parties. The Inspector cannot be criticised for acting irrationally, or for failing to give reasons, in relation to an argument of this kind which the claimant did not see fit to rely upon at any stage in its appeal. Ground 3 must therefore be rejected for this reason alone.

180.

There is also an objection to the raising of a new point of this kind in a statutory review in the High Court. If Redrow had raised at the public inquiry the point now advanced under ground 3, HBC and any other participant would have had an opportunity to adduce evidence if thought appropriate, or, at the very least, to make submissions. Just as important is the point that the matter could have been addressed in a single appeal process. The Inspector would have been able to make any additional findings of fact, to evaluate the weight to be given to the outcome of the sequential test and to strike the overall planning balance, taking into account Redrow’s additional point as part of its entire case.

181.

If the court were to quash an Inspector’s decision because of a new point of this kind, it would probably be necessary for the appeal process to be repeated in its entirety or in large part. At the very least, the same Inspector, or a new Inspector, would have to receive fresh submissions and prepare a new decision letter and evaluate the various policy and planning considerations all over again. The general principle is that new evidence and/or new submissions should not be entertained as a basis for quashing an Inspector’s decision if this would mean an Inspector would have to make further findings of fact and/or reach a new planning judgment (see e.g. R (Newsmith Stainless Limited) v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1126 [15]).

182.

As in civil proceedings more generally, resources for planning inquiries and hearings are finite and need to be distributed efficiently between all parties seeking to have planning issues resolved. There is therefore a strong public interest in the finality of such proceedings. Parties are generally expected to bring forward their whole case when a matter is heard and determined. No proper justification has been advanced by Redrow for the court to exercise its discretion exceptionally to entertain a new point which could have been, but was not, raised before the Inspector.”

It is clear from Mead, at [178] and [179], that these principles are to be applied even where the new material is significant, could have been an “obviously material consideration” for which reasons were required and could have affected the outcome. The Court is applying a preliminary procedural bar, not making a determination on the merits of the new material. For this reason, the Claimant is mistaken in submitting that the West/Mead principles are not applicable, and the approach in the Kides line of cases is to be preferred.

In this case, the Claimant was aware, before the Inquiry closed on 9 May 2023, from evidence and submissions made by the Council, that the Arup Review was due to be published shortly, in June 2023. The Council did not seek to rely on the Arup Review in these appeals. It was duly published on 16 June 2023 and considered by the Council’s Planning Policy and Climate Committee on 26 June 2023. In September 2023, the Claimant made critical comments about the Council’s handling of the Arup Review in a formal consultation response.

Although the Claimant could have asked the Inspector to consider the Arup Review, as new material published after the close of the Inquiry, and to seek representations on it from the parties, it failed to do so. The IR, dated 24 October 2023, was produced by the Inspector without having seen the Arup Review. The Inspector clearly proceeded on the basis that none of the parties had sought to rely upon or refer to the Arup Review as relevant to the issues in the appeals. He merely recorded (at IR/300) that “…a new Green Belt Review is due to be published shortly”, in his summary of the Council’s submissions, under the heading “Emerging Policy”. In my view, the Inspector was entitled to take this approach; indeed the Claimant did not submit otherwise.

I refer to my summary of the post-Inquiry correspondence at [29] – [34] above. In response to a letter from the First Defendant, on 18 January 2024, asking for the parties’ views on the updated Framework and Housing Delivery Test figures, the Second and Third Defendants referred to the Arup Review. The Second Defendant objected to any consideration of the Arup Review by the First Defendant as it was not presented nor discussed at the Inquiry; it was not relied upon by the Council in the appeals and was inconsistent with the Council’s case; it was prepared as part of the evidence base in support of the emerging local plan, and there were vigorous objections to it in the consultation.

The Council, which was the primary party resisting the appeals against its decisions and had commissioned the Arup Review as part of its evidence base for the emerging local plan, did not ask the First Defendant to consider the Arup Review. In its letters of 31 January and 12 February 2024, it did not respond substantively to the comments about the Arup Review by the Second and Third Defendants and invited the First Defendant to disregard their submissions as they went beyond the remit of the First Defendant’s letter and the case put forward by the Appellants at the Inquiry.

On 12 February 2024, the Claimant sent detailed submissions to the First Defendant, but it did not refer to the Arup Review, or seek to rely upon it. It merely stated, at paragraph 3, that the Second and Third Defendants had commented on matters outside the remit of the First Defendant’s request, and it’s lack of response should not be taken to imply agreement.

No party provided the First Defendant with a copy of the Arup Review or requested that he should obtain one.

The Claimant only sought to rely upon the Arup Review after the First Defendant’s DL was issued on 22 March 2024, in which the First Defendant stated, at DL/9, that the issues raised by the parties in the post-Inquiry correspondence did not affect his decision and did not warrant further investigation or necessitate additional referrals back to parties. The Claimant’s claim form, relying for the first time upon a failure to take into account the Arup Review, as grounds for a statutory review, was then issued on 29 April 2024.

The only explanation that has been provided by the Claimant for its failure to mention any reliance upon the Arup Review with the Inspector or the First Defendant at an earlier stage, before the final decision had been made, is that it was not represented by a legal or planning professional and it was unaware that it could raise new material, because of the Inspector’s cautions against doing so. I find this explanation to be inadequate. The Claimant is an experienced campaigner. The professional quality of its letters and submissions indicate that its officers are highly educated, intelligent people who understand the issues, and are not diffident. Indeed, they express their views with vigour. I have no doubt that they had sufficient confidence and skill to ask the Inspector and/or the First Defendant to consider and seek representations on the Arup Review, if they considered it would further their goal of protecting the Green Belt in Chiswell Green.

In my view, the Claimant would have been able to obtain professional advice on the possibility of reliance on the Arup Review, if they wished to do so. The Claimant instructed a planning consultant to resist the applications for planning permission (Mr J. Griffiths MA DipTP FRTPI), who submitted detailed representations. Mr Griffiths did not appear at the Inquiry because he was not available at the relevant time. There was no evidence to show that the Claimant could not have raised funds to cover the costs of a substitute planning consultant. Instead it chose to instruct a transport consultant at a cost of £17,400, and represented itself at the Inquiry. The Claimant is also represented by experienced planning solicitors in its High Court challenge.

As a matter of general principle, unrepresented parties are bound by the same rules of practice and procedure in public law proceedings as represented parties. In R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, Moore-Bick LJ held, at [44]:

“The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. Nonetheless, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules”.

In this case, the Claimant is not in breach of an express procedural requirement in the CPR but it has failed, without good reason, to comply with the fundamental obligation on parties to a planning appeal to place before the decision maker the material on which they rely, and not to raise points for the first time in a High Court challenge. It is commonplace for parties to be unrepresented in planning appeals, and planning procedures and hearings are arguably easier for unrepresented parties to navigate than court proceedings, as they are more informal. The West/Mead principles have been applied to unrepresented claimants: e.g. R (Akhtar) v Secretary of State for Communities and Local Government [2017] EWHC 1840 (Admin).

The Claimant’s claim, if successful, will have the following consequences:

As the Court held in Mead, resources for planning inquiries are finite and there is a strong public interest in the finality of proceedings. No proper justification has been advanced by the Claimant for the Court to exercise its discretion exceptionally to consider new evidence and grounds which were not raised or relied upon by the Claimant in the appeal to the First Defendant.

For these reasons, Ground 1 does not succeed. However, for the sake of completeness, I now go on to consider the other grounds.

In Kides the Court of Appeal held that the duty on a local planning authority to have regard to all material considerations, in section 70(2) TCPA 1990, meant that where a new material consideration arose after a Planning Committee had resolved to grant planning permission, but before the decision notice was issued, the planning officer was required to refer the application back to the Planning Committee for re-consideration, provided certain elements were met.

This principle was applied in the context of Inspectors’ decisions in Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 597 (Admin) and Wiltshire Council v Secretary of State for Communities and Local Government [2015] EWHC 1261 (Admin), where a material consideration arose after the hearing of an appeal but before a decision was made.

The elements in the Kides test were further refined in R (Hardcastle) v Buckinghamshire County Council [2022] EWHC 2905 (Admin)and Hayle, per Lane J. at [37] – [48]. It was common ground before me that the elements are now as follows:

In Friends of the Earth Ltd, Lord Hodge and Lord Sales set out the relevant principles as follows:

“116.

….. A useful summation of the law was given by Simon Brown LJ in R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037, 1049, in which he identified three categories of consideration, as follows:

“… [T]he judge speaks of a ‘decision-maker who fails to take account of all and only those considerations material to his task’. It is important to bear in mind, however, … that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process.”

117.

The three categories of consideration were identified by Cooke J in the New Zealand Court of Appeal in CREEDNZ Inc v Governor General [1981] NZLR 172, 183:

“What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.”

Cooke J further explained at p 183 in relation to the third category of consideration that, notwithstanding the silence of the statute, “there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by [the public authority] … would not be in accordance with the intention of the Act.”

118.

These passages were approved as a correct statement of principle by the House of Lords in In re Findlay [1985] AC 318, 333-334. See also R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, paras 55-59 (Lord Brown of Eaton-under Heywood, with whom a majority of the Appellate Committee agreed); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756, para 40 (Lord Bingham of Cornhill, with whom a majority of the Appellate Committee agreed); and R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3; [2020] PTSR 221, paras 29-32 (Lord Carnwath, with whom the other members of the court agreed). In the Hurst case, Lord Brown pointed out that it is usually lawful for a decision-maker to have regard to unincorporated treaty obligations in the exercise of a discretion (para 55), but that it is not unlawful to omit to do so (para 56).

119.

As the Court of Appeal correctly held in Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305; [2018] PTSR 2063, paras 20-26, in line with these other authorities, the test whether a consideration falling within the third category is “so obviously material” that it must be taken into account is the familiar Wednesbury irrationality test (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410-411 per Lord Diplock).

120.

It is possible to subdivide the third category of consideration into two types of case. First, a decision-maker may not advert at all to a particular consideration falling within that category. In such a case, unless the consideration is obviously material according to the Wednesbury irrationality test, the decision is not affected by any unlawfulness. Lord Bingham deals with such a case in Corner House Research at para 40. There is no obligation on a decision-maker to work through every consideration which might conceivably be regarded as potentially relevant to the decision they have to take and positively decide to discount it in the exercise of their discretion.

121.

Secondly, a decision-maker may in fact turn their mind to a particular consideration falling within the third category, but decide to give the consideration no weight. As we explain below, this is what happened in the present case. The question again is whether the decision-maker acts rationally in doing so. Lord Brown deals with a case of this sort in Hurst (see para 59). This shades into a cognate principle of public law, that in normal circumstances the weight to be given to a particular consideration is a matter for the decision-maker, and this includes that a decision-maker might (subject to the test of rationality) lawfully decide to give a consideration no weight: see, in the planning context, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 (HL), 780 (Lord Hoffmann).”

The Arup Review was in the third category of consideration. Applying the principles set out in Friends of the Earth Ltd, I consider that the First Defendant acted rationally, in the exercise of his discretion, in not taking the Arup Review into account, for the following reasons.

The Arup Review was not relied upon by the Claimant, or the Council (by whom it was commissioned), or even supplied to the First Defendant.

The Arup Review was at an early stage of the emerging local plan process, and consultation was ongoing. Unlike the SKM Review, it had not been tested by independent examination. The value of the 1st Stage SKM Review was not challenged. The Inspector found that the concerns about methodology in the 2nd Stage SKM Review raised by the Examining Inspectors had no bearing on these appeals (IR/531).

The Claimant emphasised that the Arup Review did not recommend either Appeal Site for release from the Green Belt, whereas the SKM Review found sub-area S8 to be the most suitable area for release, with Appeal A Site located in the least sensitive part of the area. It found that Appeal B Site was located in a more sensitive part, and therefore it was not recommended for release. However, these changes in the Green Belt assessment were primarily of significance to the preparation of the emerging local plan, not to the appeals, since the Inspector and the First Defendant found that there would be harm to the Green Belt at both sites, and they attached substantial weight to that harm. The Arup Review did not address the main issue identified by the Inspector and the First Defendant, namely, whether the harm by reason of inappropriateness, and any other harm, was clearly outweighed by other considerations, in particular housing, so as to amount to the very special circumstances necessary to justify development (IR/525(e), DL/16).

The Inspector found that the conclusions in the SKM Review could not be “directly applied to the appeal proposals” (IR/531; accepted at DL/17). Whilst the Inspector had regard to the SKM Review, he made his own assessment of the suitability of the appeal sites for the proposed development, and came to his own judgment, at IR/527 – 612. As a result, the First Defendant had the benefit of a detailed report from the Inspector who had considered the Green Belt issues following a site inspection, oral evidence, written evidence and submissions. This case-specific consideration removed any need to consider the higher-level and more generalised analysis in the Arup Review, in addition to the SKM Review which had already been taken into account.

For these reasons, the Arup Review was not “obviously material”, that is to say, a mandatory material consideration which the First Defendant was required by law to take into account, and therefore the first element of the Kides test was not met.

I accept that the second element of the Kides test was met as the First Defendant was aware of the Arup Review because it was raised in the post-Inquiry correspondence.

The Tameside duty of sufficient inquiry was helpfully described in R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647, per Underhill LJ at [70]:

“70.

The general principles on the Tameside duty were summarised by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin) at paras. 99-100. In that passage, having referred to the speech of Lord Diplock in Tameside, Haddon-Cave J summarised the relevant principles which are to be derived from authorities since Tameside itself as follows. First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken: see R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37, at para. 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.”

Under rule 17(4) of the Inquiries Procedure Rules 2000, the First Defendant could disregard any representations or evidence or other document after the close of the inquiry (subject of course to the requirement to act lawfully). At DL/9, the First Defendant decided that the representations made inter alia in respect of the Arup Review in the post-inquiry correspondence did not warrant further investigation or necessitate additional referrals back to the parties.

In my view, the First Defendant’s decision to decide the appeals without making further inquiries into the Arup Review was a rational one which he was entitled to make. The Arup Review was not relied upon by the Council or the Claimant in resisting the appeal, and together with the Second Defendant, they asked the First Defendant to disregard the references made to it, in the post-inquiry correspondence.

As stated above, the First Defendant had the benefit of a detailed report from the Inspector who had considered the Green Belt issues in depth, including the SKM Review. The Arup Review was part of the evidence base for the emerging local plan, not a report in the appeals, and it did not address the main issue identified by the Inspector and the First Defendant.

For these reasons, Ground 1 does not succeed.

The Claimant submitted, in the alternative, that if the First Defendant did take the Arup Review into account, he failed to provide any reasons why he preferred the superseded 10 year old SKM Review which the Arup Review contradicted in material ways.

The First Defendant’s response was that he did not treat the Arup Review as a material consideration in the determination of the appeals, so Ground 2 did not arise. The Second and Third Defendants also submitted that there was no requirement to give reasons as the Arup Review and its relationship with the SKM Review was not a principal controversial issue, applying the principles set out by Lord Brown in South Bucks v Porter (No. 2) [2004] 1 WLR 1953, at [36]. No party had put the Arup Review in evidence or contended that it should be preferred to the 2nd Stage SKM Review. So the question of preferring one review over the other did not arise in the appeals. I accept these submissions.

Furthermore, I consider that the First Defendant’s approach to the post-Inquiry representations concerning the Arup Review was sufficiently clear from DL/9, where he concluded that they did not affect his decision and did not warrant further investigation. This approach accorded with the Claimant’s own post-Inquiry representations, and those of the Council and the Second Defendant. Therefore, the Claimant could not possibly meet the requirement to show prejudice as a result of any inadequacy in the reasons.

For these reasons, Ground 2 does not succeed.

The application for statutory review is dismissed.