Secretary of State defends High Court challenge to grant by inspector of permission for schemes providing 721 homes

The Secretary of State for Levelling Up, Housing and Communities did not act unlawfully by failing to take account of a planning report published only after the inquiry concerned closed, though before his decision.

That ruling has come in a High Court case brought by local amenity group Keep Chiswell Green (KCG) against the Secretary of State, developers Cala Homes (Chiltern) and Headlands Way and St Albans City and District Council.

Mrs Justice Lang heard KCG applied for statutory review under section 288 Town and Country Planning Act 1990 of the Secretary of State’s decision to accept the inspector’s recommendation to overturn the council’s refusal of planning permission for housebuilding on two sites.

St Albans had refused consent for Cala to build 391 homes within the metropolitan green belt in Chiswell Green, and for Headlands Way to build 330 discounted affordable homes on an adjacent site.

The council said no ‘very special circumstances’ existed, applying the National Planning Policy Framework.

KCG argued the Secretary of State acted unlawfully by failing to have regard to a green belt review by consultancy Arup, even though none of the parties sought to rely on this or provide the Secretary of State with a copy.

The Arup review was commissioned by the council, as part of its preparations for the emerging local plan

It categorised 183 sub-areas into four according to how they performed against the framework’s definitions of green belt purposes.

Arup found neither site should be considered for further development because of green belt concerns.

Lang J noted the Arup report had appeared only after the inquiry concluded and the inspector had used an earlier report on the green belt.

He had “attached substantial weight to the harm to the green belt. However, he considered that there would be very substantial benefits from the scheme in terms of housing provision, and other benefits”, she said.

KCG submitted the Secretary of State unlawfully failed to have regard to the Arup review as a material consideration.

Cala and Headlands Way submitted that KCG was not entitled to advance new material and arguments that was never placed before the Secretary of State.

Lang J said: “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.”

She added: “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."

KCG could have asked the inspector to consider the Arup Review, as new material published after the close of the inquiry, but did not, Lang J said. Nor did St Albans ask for the Arup review to be considered.

In February 2024, KCG sent detailed submissions to the Secretary of State but still did not refer to the Arup review.

No party provided the Secretary of State with a copy of the Arup review or requested that he should obtain one.

Lang J said the only explanation from KGC for failing to mention any reliance on the Arup review to the inspector or the Secretary of State before the final decision was that it was not represented by a legal or planning professional and was unaware that it could raise new material, because of the inspector's cautions against doing so.

The judge said: “I find this explanation to be inadequate. [KCG] 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 [Secretary of State] 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.”

She said KCG was 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.

Had KCG been successful the inquiry would have to be re-opened and “no proper justification has been advanced by [KCG] for the court to exercise its discretion exceptionally to consider new evidence and grounds which were not raised or relied upon [earlier].”

Lang J also dismissed arguments that it had been irrational to make the final decision without reading the Arup review, and said KCG “could not possibly meet the requirement to show prejudice as a result of any inadequacy in the reasons”.

Mark Smulian