CA-2024-002732 - [2025] EWCA Civ 958

The context here is a decision taken by the Secretary of State to allow appeals against the refusal of planning permission where it is said that a material consideration first arose after the close of the inquiry considering the appeals but before the decision was taken. Two questions arise. The first is whether the decision is unlawful if the Secretary of State failed to take into account a material consideration, that is a consideration which was so obviously material that it was irrational not to take that into account before reaching a decision. The second question is whether a person can bring a claim for a statutory review on that basis if the person did not make the decision-maker aware of the material consideration before the decision was taken.

The starting point is to consider the statutory framework. In determining planning applications or appeals, the decision-maker is to have regard to material considerations and must decide the application or appeal in accordance with the development plan unless material considerations indicate otherwise (see sections 70(2) and 79(4) of the 1990 Act and section 38(6) of the 2004 Act).

The Rules govern the conduct of inquiries including, amongst other things, appearances at the inquiry, the provision of statements of case, and the provision of evidence. The position after the inquiry is closed is governed by rule 17 of the Rules. That does not specifically provide a mechanism for parties to make representations or provide further evidence, even evidence which was not available at the time of the inquiry. Rather rule 17(4) provides that the Secretary of State may disregard representations, evidence and documents submitted after the inquiry has closed. He has a discretion, however, and he may choose to have regard to new evidence. Rule 17(5) provides that if he considers new evidence, and is for that reason disposed to disagree with a recommendation of the inspector, he must given written notice to the persons entitled to appear at the inquiry and give them an opportunity to make written representations and to request that the inquiry is re-opened. Rule 17(7) provides that the Secretary of State may cause an inquiry to be re-opened and must do so if the new evidence is a reason for disagreeing with a recommendation and the parties request it. If the new evidence does not cause the Secretary of State to disagree with the recommendation of the inspector, then he does not have to provide written notice to the parties nor does he have to re-open the inquiry: see, by analogy, R (Dawes) v Secretary of State for Transport [2024] EWCA Civ 560, [20224] PTSR 2033 at paragraphs 59-62.

Next it is appropriate to consider the case law governing situations in which the Court of Appeal has considered whether an inspector, or the Secretary of State where he has decided to make the determination himself, has failed to comply with section 70(2) of the 1990 Act by failing to have regard to material coming into existence after an inquiry was closed.

The first case for consideration is the Bath Society case. There, the local planning authority had refused an application for planning permission to build a block of flats on land which was a field. The developers appealed against that decision. An inquiry was held in May 1988. The Bath Society were represented at the inquiry. Before the inquiry was held, the local planning authority had published a local plan which showed the field but without any notations, i.e. it was not described, or classified, as open space. Objections to the local plan were made by the Bath Preservation Trust who argued that the field should be described as open space. An inquiry was held into objections to the local plan in April 1988.

The inspector who held the inquiry into the appeal against the refusal of planning permission reported to the Secretary of State in July 1988 recommending that the appeal be allowed and planning permission granted for the proposed development. In his report, he referred to the local plan which showed the field but did not classify or describe it as open space. He noted that objections had been made to the effect that the local plan should show the site as open space. On 25 November 1988, the Secretary of State allowed the appeal and granted planning permission. Meanwhile, on 30 August 1988, the inspector who had held the inquiry into the objections to the local plan reported to the local planning authority (which was responsible for the local plan) and recommended that the field be classed as open space. That recommendation was accepted by the local planning authority on 20 December 1998. No one had, it seems, drawn the recommendation to the relevant decision-maker acting on behalf of the Secretary of State before he allowed the appeal against the refusal of planning permission.

Glidewell LJ, with whom Stocker LJ and Sir Denys Buckley agreed, held that it was open to the court to determine if the recommendation that the local plan should show the site as open space was a material consideration. He held that it was saying, at page 1311B-C:

“It was a recommendation which, if accepted by the city council, as it now has been, could lead to the local plan containing an allocation of the site as open space with which the proposed development would be totally inconsistent. In In re Findlay [1985] A.C. 318, 333–334, Lord Scarman, in a speech with which the other members of the House agreed, quoted with approval two short passages from the judgment of Cooke J. in CREEDNZ Inc. v. Governor-General [1981] 1 N.Z.L.R. 172, 183. The second passage included the observation that, though the relevant statute does not refer expressly to a particular consideration, nevertheless

“there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers… would not be in accordance with the intention of the Act.”

In my view the recommendation of the local plan inspector came within this description.

The combined effect of sections 29(1) and 36(5) of the Act of 1971 is that the Secretary of State, in deciding whether or not to allow an appeal under section 36, is required to have regard to the provisions of the development plan and to any other material considerations. So it appears that, if the view I have expressed above is correct, the Secretary of State failed to comply with the statutory requirement. Nevertheless, from that fact alone, the court is not obligedto quash his decision — it maydo so, in its discretion. In exercising that discretion, a relevant question for the court is whether the Secretary of State knew, or ought reasonably to have known, of the matter which was material to his decision.”

The reference to the provisions of the 1971 Act is a reference to the materially similar predecessor section to section 70(2) of the 1990 Act. Glidewell LJ then considered the decision of the court below, which had refused to quash the decision. He set out an extract of the judgment below from which it appears all parties (including the Bath Society) knew of the inquiry into objections into the local plan but did not ask the inspector to adjourn the inquiry or postpone his report until the result of the local plan inquiry was known. The local planning authority, who had the inspector’s recommendation about the local plan (and presumably knew their likely response to it), did not make representations to the Secretary of State nor did they request that he postpone a decision on the appeal until they had formally resolved what to do about the inspector’s recommendation on the local plan. Ultimately, Glidewell LJ concluded at page 1313B-D that:

“On the one hand, it would have been a simple matter for the city council to draw the attention of Mr Rollinson or somebody else in the decision-making branch of the Department of the Environment, the “open space” recommendation, and perhaps to ask for the appeal decision to be deferred until the city council had decided whether to accept the recommendation. The fact that the city council failed to do so is not the fault of the Secretary of State. On the other hand, the appeal inspector did report that there had been an objection relating to the field at the local plan inquiry, and it would have been equally easy for Mr. Rollinson, or one of his colleagues, to have studied the local plan inspector's report to ascertain what he recommended in relation to this site, and then to take that recommendation into account in some way.

On balance I conclude that the failure of those who were deciding the appeal to take these simple steps resulted in the Secretary of State failing to comply with his duty to have regard to this material consideration.”

In summary, therefore, the Court of Appeal held that the failure by the Secretary of State to have regard to a material consideration which was obviously relevant to the appeal decision, and which emerged after the closure of the inquiry, did amount to a breach of the relevant statutory provision. It dealt with the question of the lack of knowledge on the part of the Secretary of State when taking his decision as something relevant to the remedial discretion of the court when deciding whether or not to quash the decision.

The second decision is the Cumberlege case. There, a planning authority refused an application for planning permission for residential development in Newick. The developers appealed and an inquiry was held in February 2016. One of the relevant issues was whether a particular policy in the development plan, policy CT1, was up to date. That policy provided that development would be contained within the planning boundaries of certain settlements including Newick and Ringmer. On 6 August 2016, the inspector reported. He concluded that policy CT1 was out of date, that there was now a presumption in favour of sustainable development and recommended that the appeal be allowed and planning permission granted. By a decision letter dated 23 November 2016, the Secretary of State accepted those recommendations and allowed the appeal.

In an earlier appeal against the refusal of an application for planning permission for residential development in Ringmer, different conclusions were reached in relation to policy CT1. An inquiry was held in the Ringmer appeal in May 2016 and the inspector reported in June 2016. In his report, he concluded that policy CT1 in the development was up to date. He considered that the proposed development conflicted with policy CT1, which was part of the development plan, and so planning permission should be refused. In his decision letter issued in September 2016, the Secretary of State agreed with the inspector and allowed the appeal. The Secretary of State in the Newick appeal did not take his earlier decision in the Ringmer appeal into account and no one involved in the Newick appeal drew his attention to the decision in the Ringmer appeal. Lindblom LJ, with whom Moylan and Peter Jackson LJ agreed, identified the issue in paragraph 1 of his judgment as:

“Did the Secretary of State for Communities and Local Government, when determining an appeal against the refusal of planning permission for a development of housing, err in law in failing to take into account a recent decision of his own – even though he had not been asked to do so?”

Lindblom LJ considered that the appropriate approach to determining whether a consideration was so obviously material was to ask “whether the matter is one that no reasonable decision-maker would have failed to take into account in the circumstances” (paragraphs 22 to 23). At paragraph 31 and 32 Lindblom LJ said:

“31.

In these proceedings we are concerned with a previous appeal decision of the Secretary of State issued after the close of the inquiry in the case under consideration, and not relied upon by any of the parties in further representations to the Secretary of State before he made the challenged decision. How should the court approach such a case?

32.

Rightly in my view, the judge rejected a submission made to him on behalf of DLA Delivery that, as a matter of law, when the previous decision in question has not been placed before the Secretary of State by one or more of the parties, he is never obliged to have regard to it. There can be no “absolute rule” to that effect—as the judge demonstrated (in paras 86–106 of his judgment), having regard to a decision-maker's general obligation to take reasonable steps to acquaint himself with the relevant information to enable him to decide relevant questions correctly, an obligation emphasised by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065. As the judge concluded, the relevant authorities do not establish so rigid a principle: see, in particular, the first instance judgments in St Albans City and District Council v Secretary of State for Communities and Local Government [2015] EWHC 655 (Admin) at [88]–[101], Cotswold District Council v Secretary of State for Communities and Local Government [2013] EWHC 3719 (Admin) at [61], Hounslow London Borough Council v Secretary of State for Communities and Local Government [2009] EWHC 1055 (Admin) at [13]–[19] and Grantchester Retail Parks plc v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 92 (Admin) at [26]–[28]. And the decisions of the Court of Appeal in The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303 and R (Connolly) v Havering London Borough Council [2010] 2 P & CR 1 seem incompatible with it. In Connolly’s case the judge at first instance had quashed an inspector's decision on the ground of a mistake of fact concerning the existence of a relevant previous decision to which the local planning authority had failed to refer. The judge's decision was upheld by this court. In The Bath Society case [1991] 1 WLR 1303 the Secretary of State allowed an appeal and granted planning permission for a housing development without taking into account the recommendation in the local plan inspector’s report that the land should be allocated as open space. The appeal inspector had been unaware of the local plan inspector’s report; the Secretary of State had received it, but not in connection with the appeal. Glidewell LJ concluded, at p 1313c-d, that he had erred in “failing to comply with his duty to have regard to this material consideration”.”

It is noteworthy that Lindblom LJ expressly endorsed paragraph 88 of the judgment of Mr Howell QC sitting as a deputy High Court. That is to be found at [2017] EWHC 2057 (Admin), [2017] PTSR 1513. At paragraph 88, the deputy High Court judge said this:

“88.

The obligation not to act unreasonably in reaching a decision is one imposed on the decision-maker. When considering the discharge of that obligation in the context of a planning appeal, however, there is a difference in practice between the position that applies until the end of an inquiry or hearing or the final submission of written representations and the position that applies after that and until a decision is issued. Before the close of the “adversarial” part of the proceedings, the Secretary of State and his inspectors can normally rely, not unreasonably, on participants to draw attention to any relevant decision. That is because the prescribed procedures for the conduct of the appeal are designed to ensure all the information that the participants consider may be relevant when determining the appeal is provided by them by that stage. It is unlikely that they may all omit to refer to something that no reasonable decision-maker would fail to take into account. Although the prescribed procedures that apply after the close of the “adversarial” part of the procedure do not necessarily preclude the submission of further relevant information, they are not designed to secure that the participants provide it. In that situation further steps may reasonably be required to be taken by the Secretary of State or one of his inspectors depending on the circumstances.”

Returning to the judgment of Lindblom LJ in the Court of Appeal, he said this at paragraph 34:

“34.

I would accept three general propositions, which I think accord with the basic principles referred to by Mann LJ in the North Wiltshire District Council case 65 P & CR 137 and applied since in several decisions of this court, and which align with the judge’s conclusions in this case (in particular, at [2017] PTSR 1513, paras 100–105). First, because consistency in planning decision-making is important, there will be cases in which it would be unreasonable for the Secretary of State not to have regard to a previous appeal decision bearing on the issues in the appeal he is considering. This may sometimes be so even though none of the parties has relied on the previous decision or brought it to the Secretary of State's attention: para 100. And it may be necessary in those circumstances, in the interests of fairness, to give the parties an opportunity to make further representations in the light of the previous decision. Secondly, the court should not attempt to prescribe or limit the circumstances in which a previous decision can be a material consideration. It may be material, for example, because it relates to the same site, or to the same or a similar form of development on another site to which the same policy of the development plan relates, or to the interpretation or application of a particular policy common to both cases: see para 92 of Holgate J’s judgment in the St Albans City and District Council case [2015] EWHC 655. Thirdly, the circumstances in which it can be unreasonable for the Secretary of State to fail to take into account a previous appeal decision that has not been brought to his notice by one of the parties will vary. But in tackling this question, it will be necessary for the court to consider whether the Secretary of State was actually aware, or ought to have been aware, of the previous decision and its significance for the appeal now being determined: paras 100, 101 and 105 of the judgment. As the judge said at para 101:

“Before the close of the ‘adversarial’ part of the proceedings, the Secretary of State and his inspectors can normally rely, not unreasonably, on participants to draw attention to any relevant decision[, but] that does not mean that they are never required to make further inquiries about any matter, including about other … decisions that may be significant”.”

Lindblom LJ then dealt with the particular appeal. He considered that the decision in the Ringmer appeal was “undoubtedly a material consideration” in the Newick appeal. There was “an obvious and unexplained difference” in the approach to policy CT1 in the development plan (see paragraph 41). Lindblom LJ then identified the factors which “taken together, made it unreasonable for the Secretary of State not to have regard to the Ringmer decision before determining the Newick appeal” (paragraph 42). These were that (1) the two proposals were for the same form of development in the same district involving housing on unallocated sites outside planning boundaries as defined in policy CT1, (2) the Secretary of State had recovered both appeals for determination by him, which implicitly indicated the need for a consistent approach in their determination, and (3) the appeals were before the Secretary of State at the same time and the two decision-making processes were largely concurrent. In those circumstances, and given the clear and irreconcilable differences between the two appeal decisions, Lindblom LJ concluded that the Secretary of State had erred in failing to have regard to the earlier decision in the Ringmer appeal when deciding the Newark appeal. The Secretary of State’s decision in the Newick appeal was quashed.

The next step is to consider what, precisely, the High Court decided in West, and Mead. Dealing first with West, Mrs West appealed against a decision refusing planning permission to retain a mobile home and hardstanding for a temporary period on particular land in the green belt. The appeal was considered and determined by an inspector using the written procedure (that is, without holding an inquiry). Mrs West relied amongst other things on her own health, and her daughter’s education, as being material considerations sufficient to amount to very special circumstances justifying development in the green belt. The inspector considered those arguments, and the evidence from the general practitioner and the school, but decided that the evidence did not establish the existence of very special circumstances. Mrs West brought a claim for statutory review contending that if the inspector had any doubts about the adequacy of the supporting evidence, he should have raised those concerns with her so that further evidence could be adduced. It was in that context that Richards J observed that “the general rule is that it is incumbent on the parties to a planning appeal to place before the inspector the material on which they rely” and that applied both in the context of an oral hearing and the written procedure and that the process “does not require anything beyond proper consideration of the material put forward by the parties” (see paragraphs 42 to 45 of his judgment). That case, in my judgment, was dealing with the obligations on an inspector when conducting an inquiry. It was not concerned with the different question of the approach to be taken when matters arise after the close of the inquiry but before the decision.

The next decision is Mead. That case concerned appeals against a refusal of an application for planning permission for residential developments at sites subject to a risk of flooding. The material provision of the relevant planning guidance provided for the adoption of a sequential test aimed at steering new developments to the areas with the lowest risk of flooding. Consequently, developments “should not be allowed or permitted if there are reasonable available sites appropriate for the proposed development in areas with a lower risk of flooding”.

The particular ground of claim in the High Court in Mead was that the inspector had wrongly failed to assess housing need when he applied the policy guidance. In particular, it was said that where there was unmet housing need which could not be allocated to areas satisfying that sequential test, that may lead an inspector to conclude either that not all of the housing need could be met or that some of the housing need should be met and development allowed on sites even if the sequential test was not met in relation to those sites (see paragraph 172 to 173 of the judgment).

As part of its case in the High Court in Mead, the developer contended that if the inspector had been entitled to treat 13 particular sites as sequentially preferable, the houses that could be built on those sites would “not come close to meeting the housing needs of the borough” as the inspector had identified a shortfall of between 2,104 and 2,875 dwellings. New homes would be required on many more sites which would necessitate the use of land where flood risk was the same, or worse than, the risk at the appeal sites (paragraph 175 of the judgment). The decision-maker, the Secretary of State said in his grounds of resistance to the High Court claim that the evidence to the inquiry was that the 13 sites referred to had a capacity for 4,105 dwellings, well in excess of the need identified by the inspector. The developer put in a further witness statement in the High Court proceedings from a planning consultant putting forward arguments as to why the capacity of 4,105 dwellings should not be compared with the shortfall of 2,104 to 2,875 identified by the inspector.

It was in that context that Holgate J. said this:

“178.

I can see that if Redrow had submitted to the inspector that there was a substantial need for housing which could not be met entirely on sequentially preferable sites (and even more so in the next five years), so that additional sites with a similar or worse flood risk would need to be developed, that would be a significant factor to be addressed in the overall planning balance. It could reduce the weight to be given to the failure to satisfy the sequential test. Here the inspector gave that failure “very substantial weight” (DL 100). It would have been arguable that the flood risk implications of satisfying the unmet need for housing land was an “obviously material consideration”, such that it was irrational for the inspector not to have taken it into account (R (Friends of the EarthLtd) v Secretary of State for Transport[2021] PTSR 190, paras 116–120). Alternatively, it could have been said that there was a failure to comply with the duty to give reasons in relation to a “principal important controversial issue” between the parties.

179.

The problem faced by Redrow is that, as Mr Simons accepted, this argument was not put before the inspector. Redrow did not consider it to be material, let alone obviously material. It was not raised as a substantial issue between the parties. The inspector cannot be criticised for acting irrationally, or for failing to give reasons, in relation to an argument of this kind which the claimant did not see fit to rely upon at any stage in its appeal. Ground 3 must therefore be rejected for this reason alone.

180.

There is also an objection to the raising of a new point of this kind in a statutory review in the High Court. If Redrow had raised at the public inquiry the point now advanced under ground 3, HBC and any other participant would have had an opportunity to adduce evidence if thought appropriate, or, at the very least, to make submissions. Just as important is the point that the matter could have been addressed in a single appeal process. The inspector would have been able to make any additional findings of fact, to evaluate the weight to be given to the outcome of the sequential test and to strike the overall planning balance, taking into account Redrow's additional point as part of its entire case.

181.

If the court were to quash an inspector's decision because of a new point of this kind, it would probably be necessary for the appeal process to be repeated in its entirety or in large part. At the very least, the same inspector, or a new inspector, would have to receive fresh submissions and prepare a new decision letter and evaluate the various policy and planning considerations all over again. The general principle is that new evidence and/or new submissions should not be entertained as a basis for quashing an inspector's decision if this would mean an inspector would have to make further findings of fact and/or reach a new planning judgment (see for example Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1126, para 15).

182.

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. No proper justification has been advanced by Redrow for the court to exercise its discretion exceptionally to entertain a new point which could have been, but was not, raised before the inspector.”

Mead, therefore, was a case concerned with the arguments that were available, and could have been put, to the inspector. Had those arguments been put, and if any factual issue had to be resolved, it could have been done as part of the inquiry itself. It was in that context that the judge considered whether it could be said that the inspector acted irrationally, or had failed to give reasons, in relation to a particular issue (i.e. whether the refusal of planning permission would leave an unmet need for housing which could not be accommodated on sites with a lower risk of flooding than the appeal sites). Further, it was in that context that the judge emphasised the fact that there was an objection to raising of a new point “of this kind” in the High Court. As the judge said, if the matter had been raised before the inspector (as it could have been), then the inspector would have been able to make any additional findings of fact, and to evaluate the weight to be given to the sequential test and to strike the planning balance “as part of its entire case”. It was not for the High Court to entertain factual challenges to matters that could have been dealt with by the inspector. The case was not concerned with new material that first arise after the close of the inquiry.

In summary, therefore, the position where matters arise after an inquiry closes is as follows. First, there are circumstances where it would be irrational, and therefore unlawful, for a decision-maker to fail to have regard to a particular material consideration arising after the inquiry but before the decision is reached, even where the consideration was not drawn to the attention of the decision-maker. Those circumstances include, by way of example, allowing an appeal and granting planning permission for development on a site where that would be inconsistent with a recommendation as to how the site should be dealt with in a development plan (Bath Society) or where a recent decision deals with an issue as to the applicability of a particular development plan policy to similar developments in the area covered by that policy (Cumberlege). There is, however, “no absolute rule” as to when it would be irrational, and therefore unlawful, to fail to have regard to such a consideration (Cumberlege).

Secondly, the question will be whether the consideration is “so obviously material” that it would be irrational for the decision-maker not to take it into account. The fact that a party to the inquiry knew about the issue may, depending on the circumstances, be highly relevant to whether it can really be said that the consideration is “so obviously material” in that sense. It may also be that, in certain circumstances, the fact that the decision-maker did not know about, and could not reasonably have discovered, the new consideration is relevant to whether there has been a breach of section 70(2) of the 1990 Act, (see Kides at paragraph 124, although the relationship between that decision and the other case law may need further exploration).

Thirdly, it is possible that a court may as a matter of discretion refuse to quash a decision, or refuse to grant permission to bring a claim for a statutory review (Bath Society). That discretion could, in theory, be available if it was found that it was inappropriate for some reason to allow a person to bring a claim when the person knew of the new material consideration, knew that he could draw it to the attention of the Secretary of State but for some, possibly tactical, reason chose not to do so (a possibility raised in argument).

Fourthly, the decisions in West and, in particular, Mead do not mean that a person cannot bring a statutory claim based on new material becoming available only after an inquiry had closed but before the decision-maker reached a decision. Such an absolute position would be incompatible with the decisions of the Court of Appeal. Such an understanding of West and Mead would also fail to reflect the fact that they were both concerned with arguments or evidence that was or could have been made available at the time of the inquiry but a party did not do so.

In the light of that review of the case law, it is possible to consider ground 1 and the decision of the judge on that issue. First, the judge was wrong to describe the issue in this case as a preliminary issue of whether the appellant was permitted to advance an argument based on new grounds and evidence not placed before the inspector or the Secretary of State. The judge’s analysis of the position at paragraphs 65 to 67 and 78 does not fully reflect the case law analysed above. In particular it is wrong to approach the question on the basis that there is a “fundamental obligation on parties to a planning appeal to place before the decision-maker material on which they rely, and not to raise points for the first time in a High Court challenge”.

There are good reasons why parties to an inquiry should ensure that material which is, or could be, available at the time of the inquiry present that material at the inquiry. Failure to do so might well lead a court to conclude that an inspector has not acted irrationally in not taking such matters into account. Furthermore, if the arguments rely on adducing evidence to the Court which could have been adduced before the inspector, it is unlikely that a Court would permit the use of evidence in that way. But the position here is different. The material arose after the conclusion of the inquiry. The question is whether the material was a material consideration to which the Secretary of State had to have regard. There are circumstances where a decision-maker may be found to have acted irrationally where he has failed to have regard to something obviously material to his decision even if it were not brought to his attention by the parties. The fact that they did not do so may be relevant to other matters, such as whether the consideration really is a material one, or whether there has been irrationality in not considering it. In addition, the judge did not recognise that there is no specific provision governing the provision of evidence after the inquiry and the process at that stage is not entirely adversarial as recognised in Cumberlege. The judge was wrong, therefore, to proceed on the basis that there was some breach of a fundamental obligation which operated as a preliminary procedural bar to allowing the claim for statutory review to proceed. She was wrong to exercise any discretion she had on that basis, rather than on the more nuanced basis described above.

Secondly, I consider that the judge was wrong to exercise any discretion she had on the basis that, if the appellant’s claim was successful, that would have certain consequences, namely the inquiry would have to be re-opened, and the inspector would have to allow an opportunity for further evidence and cross-examination. That would be inconsistent with the provisions of rule 17(5). If the new material does not cause the Secretary of State to disagree with the inspector’s recommendation, he does not have to notify the parties or re-open the inquiry. If the new material did, however, cause the Secretary of State to disagree with the recommendation of the inspector, then he would have to notify the parties of that and they would be able to require the inquiry to be-reopened. That, however, is why the Rules provide a discretion for the Secretary of State to consider new evidence and why it would be wrong for the court to prevent the consideration of such evidence in these situations. It is because the material may lead the Secretary of State to conclude that he now disagrees with the recommendation that it is important that the case law recognises the possibility that it would be unlawful for a decision to be reached without such crucially significant material being considered. It would not be in the public interest to prevent persons from raising a failure to have regard to a material consideration where that material consideration would result in the Secretary of State taking a different view from the inspector.

In the circumstances, the judge was wrong to exercise any discretion she had to refuse the claimant the opportunity to bring the claim. For my part, the sensible course of action is, in fact, to consider whether the new consideration is a material consideration, that is, is one that is so obviously material to the decision that it would be irrational for the Secretary of State to reach a decision without taking it into account. There is nothing in the present case to suggest that any discretion, which I think must be a discretion to refuse a remedy or to refuse permission to bring the claim, should be considered first.