Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government and another

Housing development – Planning permission – Decision letter – Claimant appealing against refusal of planning permission – Second developer being refused permission in similar case – Claimant seeking to quash decision letter dismissing appeal – Whether defendant secretary of state erring in reaching contradictory conclusions in similar appeals – Whether defendant misconstruing planning policy statement — Application granted The claimant developer applied under section 288 of the Town and Country Planning Act 1990 for an order quashing a decision letter of the first defendant secretary of state whereby he dismissed its appeal against the refusal of the second defendant local planning authority to permit the erection of 280 dwellings on land at Sandbach, Cheshire. The site consisted of 15.6 hectares of agricultural land.The first defendant had concluded that the claimant’s proposal would accord with the regional spatial strategy in terms of numerical provision and with Planning Policy Statement (PPS) 3 in contributing towards meeting the shortfall resulting from the second defendants’ failure to demonstrate a five-year supply of housing land across Cheshire East, in achieving a good mix of housing on a sustainable site and in helping to meet the affordable housing shortfall in the area. However, by a decision letter issued in September 2011, he decided that those matters were outweighed by the proposal’s conflict with saved development plan policies in respect of settlement boundaries, the restriction on development in the countryside and the need to avoid the permanent loss of “best and most versatile” agricultural land unless absolutely unavoidable.Another developer (R), had sought permission to erect 269 dwellings on another greenfield site in Sandbach. It had also been refused planning permission, which led to another appeal before the first defendant which was decided in July 2011. The claimant had argued unsuccessfully that the two appeals should be heard together since they raised very similar issues. When determining the claimant’s appeal, the first defendant decided that his previous decision on R’s appeal should carry no weight.The claimant argued that the first defendant had erred in law in reaching certain conclusions in R’s decision letter which were contradictory to, and could not be reconciled with, the September 2011 decision letter, without giving reasons. Further, the first defendant had misquoted and misunderstood PPS 7 by asserting that there was “a need to avoid permanent loss of best and most versatile land unless absolutely unavoidable”. Held: The application was granted.(1) Although it was within the first defendant’s discretion not to determine the two appeals together, the risk of not doing so was that the decision maker might follow a different, and contradictory, approach in two decisions even though they raised very similar issues. What he could not do, unless he gave clear reasons, was to determine one appeal in a way that was contradictory to the other. In R’s case, the first defendant had concluded that the development would not conflict with the spatial policy objectives for the area, whereas in the present case he concluded that it could do so without giving any reasons for the stark difference in approach. That was in conflict with established principles and had resulted in a major error of law. Accordingly, the decision letter had to be quashed: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 applied; Dunster Properties Ltd v First Secretary of State [2007] EWCA Civ 236; [2007] PLSCS 40 followed.(2) It was not for the court to direct the first defendant on how to approach redetermination. However, it was appropriate to point out that if he had two appeals relating to similar proposals in the same town before him, he would run a much reduced risk of problems like the present occurring again if he decided to determine the two cases together.(3) In applying PPS 3, the first question was whether there was a shortfall in the housing land supply. If there was, it was necessary to “consider favourably planning applications for housing, having regard to the policies in this PPS including the considerations in paragraph 69”. That did not prevent one from looking at anything outside PPS 3. Whether one was looking generally, or within PPS 3, when weighing up whether there were objections to the release of a site to meet an identified shortfall, any policy or material consideration relevant to the principle of its development could properly be taken into account, whether a “housing” policy as such or not. The provisions of the development plan were also relevant, both by virtue of section 38(6) of the Planning and Compulsory Purchase Act 2004 and paragraph 68 of PPS 3.(4) Furthermore, the test set out by the first defendant at paragraph 25 of the decision letter was wrongly stated, and differed from that in PPS 7 at paragraph 28. It did not fall within the range of reasonable interpretations of the policy. If he had applied the test in PPS 7 properly he would have asked whether the shortfall he had found required the taking of agricultural land. If it did so, then he had to consider whether there was other available land which was not best and most versatile. He had not done that. He had misunderstood his own policy and failed to apply it without giving any reasons for departing from it. However, given the existence of the other reasons for refusal by the first defendant, had it stood on its own, the court would not have quashed the decision on the strength of the misunderstanding of PPS 7. Paul Tucker QC and Anthony Gill (instructed by Aaron and Partners LLP) appeared for the claimant; Rupert Warren (instructed by the Treasury Solicitor) appeared for the first respondent; The second respondents did not appear and were not represented. Eileen O’Grady, barrister