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Keep Chiswell Green v Secretary of State for Housing, Communities and Local Government & Ors
Factual and Procedural Background
This appeal concerns a decision by the Secretary of State for Housing, Communities and Local Government to allow appeals against refusals of planning permission by a local council for two residential developments within the metropolitan green belt near a city in Hertfordshire. The appellant is a local community group opposing the developments. The first proposed development, promoted by Company A, involved up to 391 dwellings and land for a new school on a site south of a local lane (Appeal A). The second, promoted by Company B, involved up to 330 affordable homes for key workers on a site north of the lane (Appeal B).
An inquiry was held before an inspector between April and May 2023. After the inquiry closed but before the Secretary of State's decision, a new green belt review report commissioned by the council (the Arup Review) was published. None of the parties submitted this report to the inspector or Secretary of State during the inquiry or decision process. The inspector recommended allowing the appeals, and the Secretary of State accepted this recommendation, granting planning permission.
The appellant applied for a statutory review under section 288 of the Town and Country Planning Act 1990, arguing that the Secretary of State unlawfully failed to have regard to the Arup Review, a material consideration arising after the inquiry but before the decision. The High Court judge dismissed the claim, holding that the appellant could not rely on new evidence not placed before the decision-maker and that the Arup Review was not a mandatory material consideration. The appellant now appeals on two grounds: the existence of a procedural bar preventing reliance on the Arup Review, and the materiality of the Arup Review itself.
Legal Issues Presented
- Whether a procedural bar exists preventing a party from arguing that the Secretary of State failed to have regard to a material consideration arising after the close of an inquiry but before the decision was made, when that consideration was not placed before the decision-maker.
- Whether the Arup Review was so obviously material that the Secretary of State was obliged to have regard to it before deciding the appeals.
Arguments of the Parties
Appellant's Arguments
- The Secretary of State was obliged under statutory provisions to have regard to material considerations arising after the inquiry but before the decision, especially if the Secretary of State knew or ought reasonably to have known of their existence.
- The procedural bar identified by the judge, based on failure to place evidence before the decision-maker, should not apply to material considerations arising post-inquiry.
- The Arup Review was so obviously material that it was irrational and unlawful not to take it into account, as it superseded the previously relied upon SKM Review and reached different conclusions about green belt release suitability.
Respondents' Arguments (Secretary of State, Company A, Company B)
- Decisions in West and Mead require parties to draw the decision-maker's attention to material considerations existing at the time of the inquiry; this principle extends to post-inquiry matters.
- The judge correctly exercised discretion to refuse to consider new evidence and grounds not placed before the decision-maker.
- The Arup Review related to an emerging local plan at an early stage, was untested by independent examination, and was not relied upon by the council or parties during the inquiry or decision-making.
- The primary question was whether very special circumstances outweighed green belt harm, not the suitability of land release in a local plan context.
- The inspector and Secretary of State properly assessed the sites themselves, attaching substantial weight to the harm and benefits, and the Arup Review did not add materially to that assessment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| West v First Secretary of State [2005] EWHC 729 (Admin) | Parties must place before the inspector the material on which they rely; failure to do so generally precludes reliance on new evidence at review stage. | The court distinguished this rule as applying to evidence available during inquiry, not material arising post-inquiry; the judge's application of this principle was considered too rigid. |
| Mead Realisations Ltd v Secretary of State for Levelling-up, Housing and Communities [2024] EWHC 279 (Admin) | Similar to West; new points not raised at inquiry generally not entertained at review unless exceptional circumstances. | The court emphasized the difference between evidence available during inquiry and material arising after; the judge's procedural bar was found inappropriate in this context. |
| R (Kides) v South Cambridge District Council [2002] EWCA Civ 1370 | A material consideration must be taken into account if it is so obviously material that failure to do so is irrational; knowledge or reasonable knowledge of the consideration by the decision-maker is relevant. | Applied to assess whether the Arup Review was a mandatory material consideration; court concluded it was not "so obviously material". |
| The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303 | Failure to have regard to a material consideration arising after inquiry but before decision can be unlawful if the decision-maker knew or ought to have known of it. | Used as an example where failure to consider a post-inquiry material consideration warranted quashing; distinguished from the present case due to different facts. |
| Baroness Cumberlege v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305 | Material considerations so obviously relevant that a decision-maker must have regard to them, even if not drawn to their attention by parties. | Supported the principle that a decision-maker must take into account obviously material considerations; court found Arup Review did not meet this threshold. |
| R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52 | Established categories of considerations and the Wednesbury irrationality test for whether a consideration must be taken into account. | Guided the court's analysis of whether the Arup Review was so obviously material that failure to consider it was irrational. |
| Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 | Decision-maker's obligation to take reasonable steps to acquaint themselves with relevant information. | Referenced in discussion of the Secretary of State’s duty to be aware of material considerations and the limits of reliance on parties to draw attention to them. |
| R (Dawes) v Secretary of State for Transport [2024] EWCA Civ 560 | Secretary of State may disregard representations received after inquiry close unless they cause disagreement with inspector’s recommendation. | Applied by analogy to explain the Secretary of State’s discretion to consider or disregard post-inquiry material. |
| Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1126 | New evidence or submissions should not be entertained at review if they require new findings or planning judgment. | Supported the principle that new material not raised at inquiry is generally not entertained unless exceptional circumstances exist. |
| Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 | The weight given to a material consideration is for the decision-maker, subject to rationality. | Supported the court’s deference to the Secretary of State’s assessment of the weight to be given to green belt harm and benefits. |
Court's Reasoning and Analysis
The court first addressed the procedural issue of whether the appellant was barred from raising a failure to consider the Arup Review because it was not placed before the inspector or Secretary of State. The court found that the judge erred in applying a rigid procedural bar derived from cases concerning evidence available during the inquiry. The court distinguished material arising after the inquiry close and before decision, recognizing that the decision-maker may be obliged to consider such material if it is so obviously material that failure to do so is irrational. The court emphasized that the procedural rules governing inquiries do not specifically provide for submission of new evidence post-inquiry, but the Secretary of State has discretion to consider such evidence and must notify parties if it causes disagreement with the inspector's recommendation.
The court reviewed relevant case law, including The Bath Society and Cumberlege, which support that failure to consider obviously material post-inquiry considerations may be unlawful. However, there is no absolute rule requiring consideration of all new material; the test is whether the material is "so obviously material" that it would be irrational not to consider it.
Applying the test to the Arup Review, the court found it was not so obviously material. The Arup Review was commissioned as part of an emerging local plan at an early stage, had not been tested by independent examination, and addressed a different question (land release in local plan preparation) than the appeals (whether very special circumstances justified inappropriate green belt development). The inspector and Secretary of State had already assessed harm and benefits in detail, attaching substantial weight to the harm and concluding very special circumstances existed. The Arup Review did not alter that assessment materially.
The court also noted that neither the council (which commissioned the Arup Review) nor the appellant had formally requested the Secretary of State to consider it, reinforcing that it was not a mandatory material consideration. The court concluded that the Secretary of State acted rationally in not taking the Arup Review into account.
Holding and Implications
The appeal is dismissed.
The court held that the appellant was not procedurally barred from raising the issue of the Secretary of State's failure to consider the Arup Review, but on the merits, the Arup Review was not so obviously material as to require consideration. Consequently, the Secretary of State's decision to allow the appeals and grant planning permission was lawful. The direct effect is that planning permission remains valid for the two developments. No new precedent was established beyond clarifying the application of procedural bars and the test for materiality of post-inquiry considerations in planning appeals.
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