Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government (First Defendant) Cheshire East Council (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Rimer,Lady Justice Black |
| Judgment Date | 20 July 2012 |
| Neutral Citation | [2012] EWCA Civ 1198 |
| Docket Number | Case No: C1/2012/0673 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2012 |
[2012] EWCA Civ 1198
Lord Justice Pill
Lord Justice Rimer
and
Lady Justice Black
Case No: C1/2012/0673
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE GILBART QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Rupert Warren QC (instructed by Treasury Solicitors) appeared on behalf of the Appellant.
Mr Paul Tucker QC and Mr Anthony Gill (instructed by Aaron and Partners Llp Solicitors) appeared on behalf of the Respondents.
This is an appeal against a judgment of HHJ Gilbart QC sitting as a deputy High Court judge on 2 March 2012. The judge quashed a decision of the Secretary of State for Communities and Local Government ("the Secretary of State") whereby the Secretary of State dismissed appeals by Fox Strategic Land and Property Limited ("the respondent") against the refusal of Cheshire East Council to grant planning permission for up to 280 dwellings, landscaping, open space, highway and associated works on land at Sandbach in Cheshire.
In refusing permission the Secretary of State agreed with the recommendations of an Inspector appointed by him who conducted a public local inquiry in April 2011. The appeal site consists of 15.6 hectares of agricultural land, most of which is described as BMV (best and most versatile) land.
The Secretary of State appeals against the decision of the judge quashing the refusal of planning permission and it is submitted on behalf of the Secretary of State that the judge erred in holding that the Secretary of State was not entitled, when making his decision, to accord "no weight" to his earlier decision in relation to a nearby site, the Richborough appeal. It is also submitted that the judge erred in finding that the Secretary of State had misunderstood his own policy on the use of agricultural land and had failed to apply it properly. The judge stated that had this ground stood on its own he would not have quashed the decision on the strength of it.
By a respondent's notice the respondent submits that the decision should also have been quashed on other grounds, relying on issues in relation to prematurity and impact on the local housing market.
The judge's decision was based on the inconsistency of the Fox decision with the Richborough decision in a material respect and one which was central to the decision. It is necessary to refer to the timetable. The Richborough appeal related to an application by a different developer for permission to build 269 dwellings on a different green field site in the Sandbach area. A local planning inquiry into a refusal of permission on that site was held in February 2011 and the Inspector reported to the Secretary of State on 25 March 2011. The appeal was dismissed by a decision letter dated 4 July 2011, that is after the local public inquiry in the Fox appeal but before the decision.
By application dated 15 August 2011 the Richborough applicant sought to quash the refusal of permission in that case in the High Court. The decision was quashed with the Secretary of State's consent on 18 October 2011 and the Secretary of State is to redetermine that appeal. That redetermination has been put on hold to await the outcome of the present appeal, the Fox appeal. Expedition for the present hearing has been given and it is plainly important to the parties and in the public interest that the decision is given promptly. We give it on the same day as the hearing.
In the decision letter in the Fox appeal the Secretary of State stated at paragraph 22, under the heading "Other Relevant Appeals":
"The Secretary of State notes that the inspector has also had regard to other relevant appeals and accepts that these could be a material consideration. The appeal by Richborough Estates was dismissed on 4 July but is subject to legal challenge in the High Court. The Secretary of State has attributed no weight to this matter in the decision before him."
Mr Warren QC for the Secretary of State submits that the only possible reading of that paragraph is that the reason for no weight being attributed to the Richborough appeal was that it was subject to legal challenge in the High Court. In my judgment the Secretary of State, for that reason, ignored the appeal. He refers to it, demonstrating he knows of its existence but, for the reason he gave, he has decided to ignore it. That is my reading in this context on the expression "attributed no weight".
Mr Warren's approach is based on the relevant ground of appeal, which states:
"Where the relevant previous decision may or may not be in existence in the near future, due to a High Court determination, it was not a breach of the principle of consistency for the Secretary of State to give no weight to it."
Fox consistently requested the Secretary of State to decide the Fox and Richborough appeals together. There is no doubt that they have been troubled throughout by the prospect of inconsistent decisions. When refusing that application, the Secretary of State drew attention in the Richborough decision letter, at paragraph 5, to a request that the two appeals be determined together:
"The Secretary of State considers that each case should be determined on its own merits."
The judge quashed the Fox decision on these grounds:
"42. At the time the Fox decision was issued, it is of course true that the Richborough challenge had been issued. However I do not accept the argument of Mr Warren that therefore the SSCLG could avoid dealing with the obvious conflicts by electing to treat it as having no weight. The SSCLG had not at that point submitted to judgement, so the decision still stood as a matter of law. In any event the grounds of challenge raised by Richborough did not go to any of the areas where the two decision letters were so far apart. The fact that since then the SSCLG has resisted receiving any representations on those areas confirms me in that approach."
When considering inconsistency the judge cited the decision of this court in North Wiltshire DC v Secretary of State for the Environment [1992] 65 P&CR 137, at 145. I cite the judgment of Mann LJ with whom Purchase LJ and Sir Michael Kerr agreed:
"In this case the asserted material consideration is a previous appeal decision. It is not disputed in argument that the previous appeal decision is capable of being a material consideration. The proposition is, in my judgment, indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision in a previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
That approach was followed more recently in Dunster Properties Ltd v First Secretary of State and Anr [2007] EWCA Civ 236. Mr Warren also referred to the case of JJ Gallagher Ltd v SSHD [2002] EWHC 1812 (Admin), a decision of Mr George Bartlett QC sitting as a High Court judge.
Mr Bartlett stated at paragraph 58:
"Mr Mould submits that the only question is whether it could be ascertained from the decision letter why it was that the Secretary of State was refusing planning permission despite having granted it in the Church Commissioners appeal. If it could be so ascertained, it did not matter that the earlier decision was not referred to. In my judgment the need for an express explanation of an apparent inconsistency between the decision under consideration and an earlier decision will depend on the circumstances. If the explanation of the inconsistency is obvious, a formal statement of it will be unnecessary. Where the inconsistency is stark and fundamental, as it seems to me it is in the present case, it will in my judgment usually be insufficient to leave it to the reader to infer the explanation for the inconsistent decisions. The reason for this is that unless the decision-maker deals expressly with the earlier decision and...
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Table of Cases
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