Wiltshire Council v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards |
| Judgment Date | 15 September 2015 |
| Neutral Citation | [2015] EWCA Civ 1068 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2015/1991 |
| Date | 15 September 2015 |
[2015] EWCA Civ 1068
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, PLANNING COURT
(MRS JUSTICE PATTERSON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Richards
C1/2015/1991
Mr H Richards (instructed by Wiltshire Council Legal Services) appeared on behalf of the Applicant
The Respondent was not present and was not represented
This is an application by Wiltshire Council for permission to appeal against an order of Patterson J by which she declared that a decision of the Secretary of State (the first respondent to the present application) allowing a planning appeal by a number of developers (the second to fourth respondents) was unlawful but she declined to quash the decision. The essence of the application to this court is that the judge should have granted a quashing order, not a declaration.
The background is set out fully in the main judgment below, [2015] EWHC 1261 (Admin). The developers were appealing to the Secretary of State against the Council's refusal of planning permission for the erection of a number of dwellings. One of the issues was that of housing need. The Council had conceded that it could not demonstrate a five year supply of housing in compliance with the National Planning Policy Framework. Under the emerging Wiltshire Core Strategy it was planning to deliver at least 42,000 homes, some 2,000 below the full objectively assessed need. At an extremely late stage in the planning appeal, however, the Council submitted to the Planning Inspectorate (PINS) a final report by the Inspector examining the emerging Core Strategy in which that Inspector found that the 42,000 figure was sound and that the Council could demonstrate a five year supply of housing against that requirement.
That report was submitted to the Inspectorate but did not find its way to the Inspector determining the appeal and was, therefore, left out of account in the decision.
The judge found that the decision was unlawful in failing to take the report into account. Her main judgment on the issue concluded as follows at paragraphs 72 to 74:
i. "72. It follows that I find that the claim succeeds in Appeal A. The second to fourth defendants though contend that the claimant has suffered no prejudice and that the court should, in the circumstances exercise its discretion not to quash the decision.
ii. 73. I am satisfied that the claimant has suffered prejudice in that planning permission has been granted for a development contrary to development plan policy on a basis which was or may have been in error, namely, housing need.
iii. 74. As to discretion that is harder. The second to fourth defendants were not on notice that they should be doing something, they lost the opportunity to make representations to PINS and if the decision is quashed the application will be re-determined against a revised development plan situation. None of that is of their making. However, the fact is that it cannot be said as per Simplex… that the decision would have been the same. That is just not known. In the circumstances and, with a degree of reluctance, I find that I am unable to exercise my discretion not to quash the decision letter."
She ended her judgment by inviting written submissions on the final order and costs. Whilst such submissions can often be made and taken into account between receipt of the draft judgment by counsel and the handing down of the approved judgment by the judge, in this case the submissions followed hand down of the judgment.
In those submissions, the developers argued in favour of relief by way of a declaration rather than a quashing order. The Council's submissions resisted that argument, contending that the principle of quashing had been determined in the main judgment, which was already a public judgment, and that a declaration should in any event be refused. The Secretary of...
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