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

The appellant applied for a statutory review of the decision of the Secretary of State. Permission to bring that application was granted by Eyre J. For present purposes, the relevant ground of appeal 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 taken, namely the Arup Review.

The appellant had not, of course, asked the Secretary of State to consider the Arup Review when taking his decision. The judge, therefore, considered as a preliminary issue whether the appellant was permitted to advance an argument in the High Court based on material and argument that was not placed before the inspector or the Secretary of State. She noted the general rule that it was incumbent on the parties to a planning appeal to place before the decision-maker the material on which they rely, referring to the decisions of Richards J in West v First Secretary of State [2005] EWHC 729 (Admin) at paragraph 42, and Holgate J in Mead Realisations Ltd v Secretary of State for Levelling-up, Housing and Communities [2024] EWHC 279 (Admin), [2024] PTSR 1093 at paragraphs 178 to 182.

The judge considered that:

“67.

It is clear from Mead, at [178] and [179], that these principles are to be applied even where the new material is significant, could have been an “obviously material consideration” for which reasons were required and could have affected the outcome. The Court is applying a preliminary procedural bar, not making a determination on the merits of the new material. For this reason, the Claimant is mistaken in submitting that the West/Mead principles are not applicable, and the approach in the Kides line of cases is to be preferred.”

The judge then reviewed the facts, noting that the appellant was aware of the Arup Review and, although it could have asked the inspector to consider the Arup Review as new material published after the inquiry had closed, and to seek representations on it from the other parties, it did not do so. The judge noted that the Council, which was the primary party resisting the appeals and which had commissioned the Arup Review, did not ask the Secretary of State to consider the Arup Review. As the judge noted at paragraph 73 “No party provided the [Secretary of State] with a copy of the Arup Review or requested that he should obtain one”. The appellant only sought to rely on the Arup Review after the decision letter was issued. The judge did not accept that the explanation offered for not doing so – that the appellant’s members were unaware that it could raise new material – was an adequate explanation for not raising the matter with the Secretary of State. At paragraph 78 to 79, the judge said:

“78.

In this case, the Claimant is 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. It is commonplace for parties to be unrepresented in planning appeals, and planning procedures and hearings are arguably easier for unrepresented parties to navigate than court proceedings, as they are more informal. The West/Mead principles have been applied to unrepresented claimants: e.g. R (Akhtar) v Secretary of State for Communities and Local Government [2017] EWHC 1840 (Admin).

79.

The Claimant's claim, if successful, will have the following consequences:

i)

The Inquiry would have to be re-opened.

ii)

The Inspector would have to receive further evidence, and, as the Second Defendant indicated in its letter of 16 February 2024, there would have to be an opportunity for cross-examination. Further submissions would have to be made.

iii)

The Inspector would have to make new findings and evaluations, on the basis that the Arup Review had superseded the 2nd Stage SKM Review, and strike the overall planning balance, in a revised IR.

iv)

The First Defendant would have to re-make his decision, on the basis of the revised IR, and the Inspector's recommendations, and issue a revised DL.

v)

Alternatively, the parties may contend that a fresh appeal process with a new Inspector is required, in the interests of fairness.”

Consequently, the judge concluded at paragraph 80 that:

“80.

As the Court held in Mead, resources for planning inquiries are finite and there is a strong public interest in the finality of proceedings. No proper justification has been advanced by the Claimant for the Court to exercise its discretion exceptionally to consider new evidence and grounds which were not raised or relied upon by the Claimant in the appeal to the First Defendant.”

For completeness, the judge considered the other ground of review. She considered whether the Arup Review was “so obviously material” that it amounted to a mandatory material consideration, that is, a consideration which the Secretary of State was bound to take into account. She concluded that it was not, and that the Secretary of State had acted rationally in the exercise of his discretion in not taking the Arup Review into account for the following reasons:

“87.

The Arup Review was not relied upon by the Claimant, or the Council (by whom it was commissioned), or even supplied to the First Defendant.

88.

The Arup Review was at an early stage of the emerging local plan process, and consultation was ongoing. Unlike the SKM Review, it had not been tested by independent examination. The value of the 1st Stage SKM Review was not challenged. The Inspector found that the concerns about methodology in the 2nd Stage SKM Review raised by the Examining Inspectors had no bearing on these appeals (IR/531).

89.

The Claimant emphasised that the Arup Review did not recommend either Appeal Site for release from the Green Belt, whereas the SKM Review found sub-area S8 to be the most suitable area for release, with Appeal A Site located in the least sensitive part of the area. It found that Appeal B Site was located in a more sensitive part, and therefore it was not recommended for release. However, these changes in the Green Belt assessment were primarily of significance to the preparation of the emerging local plan, not to the appeals, since the Inspector and the First Defendant found that there would be harm to the Green Belt at both sites, and they attached substantial weight to that harm. The Arup Review did not address the main issue identified by the Inspector and the First Defendant, namely, whether the harm by reason of inappropriateness, and any other harm, was clearly outweighed by other considerations, in particular housing, so as to amount to the very special circumstances necessary to justify development (IR/525(e), DL/16).

90.

The Inspector found that the conclusions in the SKM Review could not be “directly applied to the appeal proposals” (IR/531; accepted at DL/17). Whilst the Inspector had regard to the SKM Review, he made his own assessment of the suitability of the appeal sites for the proposed development, and came to his own judgment, at IR/527 – 612. As a result, the First Defendant had the benefit of a detailed report from the Inspector who had considered the Green Belt issues following a site inspection, oral evidence, written evidence and submissions. This case-specific consideration removed any need to consider the higher-level and more generalised analysis in the Arup Review, in addition to the SKM Review which had already been taken into account.

91.

For these reasons, the Arup Review was not "obviously material", that is to say, a mandatory material consideration which the First Defendant was required by law to take into account, and therefore the first element of the Kides test was not met.

92.

I accept that the second element of the Kides test was met as the First Defendant was aware of the Arup Review because it was raised in the post-Inquiry correspondence.”