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

This appeal concerns a decision of the first respondent, the Secretary of State for Housing, Communities and Local Government, in which he accepted recommendations of an inspector and allowed appeals against decisions of the fourth respondent, St Albans City and District Council (“the Council”), refusing applications for planning permission for two residential developments on land within the metropolitan green belt in Chiswell Green near St Albans in Hertfordshire. The appellant, Keep Chiswell Green, is a local community group of residents which opposed the grant of planning permission for the two proposed developments.

One proposed development, promoted by the second respondent, Cala Homes (Chiltern) Ltd (“Cala”), was for up to 391 dwellings (and the provision of land for a new school) at a site to the south of Chiswell Green Lane. The appeal in relation to the refusal of this application for permission is referred to as Appeal A and the site as the Appeal A site.

The second proposed development, promoted by the third respondent, Headlands Way Limited (“Headlands”), was for up to 330 affordable homes for key workers on a site to the north of Chiswell Green Lane. The appeal in relation to the refusal of this application for permission is referred to as Appeal B and the site as the Appeal B site.

As part of the appeals process, an inquiry was held before an inspector between 17 April and 9 May 2023. Following the closure of the inquiry, but before the decision of the Secretary of State on the appeals, a new document, the Arup Green Belt Review (“the Arup Review”), was published. That document was commissioned by the Council as part of the process of developing a local plan and included recommendations about which areas of land should be released from the green belt. None of the parties to the inquiry, which included the appellant, sent a copy of the Arup Review to the inspector or the Secretary of State. The inspector recommended allowing the appeals and granting planning permission. The Secretary of State accepted those recommendations.

The appellant then applied for a statutory review of the Secretary of State’s decision, pursuant to section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”). The principal ground of challenge was that the Secretary of State unlawfully failed to have regard to a material consideration which arose after the inquiry had closed but before the decision was made, namely the Arup Review which it was said had superseded an earlier green belt review (referred to as the SKM review).

Lang J. (“the judge”) dismissed the claim. First, the judge held that the appellant was not entitled to rely upon new evidence and grounds which it had not placed before the inspector or the Secretary of State. Secondly, she held that the Arup Review was not a mandatory material consideration and the Secretary of State did not act irrationally by not taking the Arup Review into account.

The appellant appeals on two grounds which can be summarised as follows:

Ground 1. The judge was wrong to find that there was a preliminary procedural bar preventing the appellant from arguing that the Secretary of State had failed in her duty to have regard to a material consideration when determining the appeals against the refusal of planning permission.

Ground 2. The judge was wrong to find that the Arup Review was not “so obviously material” so as to be a mandatory material consideration which had to be taken into account by the Secretary of State before he reached a decision on the appeals against the refusal of planning permission.

At the conclusion of the hearing, we announced that the appeal would be dismissed for reasons to be given in writing. These are my reasons for joining in that decision.