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

Mr Riley-Smith for the appellant submitted that the Secretary of State was obliged by sections 70(2) and 79(4) of the 1990 Act to have regard to material considerations when deciding an appeal. That, he submitted, meant that the Secretary of State must have regard to a material consideration which arose after the conclusion of the inquiry but before the decision was taken at least where the Secretary of State knew, or ought reasonably have known, of the existence of that material consideration, applying the reasoning of the Court of Appeal in R (Kides) v South Cambridge District Council [2002] EWCA Civ 1370, [2003] 1 P & CR 19.

Mr Riley-Smith submitted that the decisions of the High Court in West and Mead applied in circumstances where an argument or evidence was available during the course of an inquiry and a party did not raise that with the inspector at the time. The position was different in relation to a material consideration which arose after the inquiry had closed but before the decision was taken. There the fact that the appellant had not raised the matter with the Secretary of State of State did not operate as a procedural bar preventing the appellant from arguing before a court that the failure to have regard to a material consideration amounted to a breach of section 70(2) of the 1990 Act. That failure may be relevant in the assessment of whether the consideration is so obviously material as to amount to a material consideration. It may be relevant to whether the Secretary of State knew, or ought to have known, of the existence of the consideration before reaching a decision. But it did not operate as a procedural bar to a claimant raising an alleged breach of section 70(2) in a claim for statutory review. Mr Riley-Smith also relied upon the decisions of this Court in The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303, and Baroness Cumberlege v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305, [2018] PTSR 2063.

Mr Simons KC for the Secretary of State submitted that, by analogy, the decisions in West and Mead required a party to draw the decision-maker’s attention to a material consideration that existed at the time of the inquiry. That principle applied equally to matters arising after an inquiry had closed and before the decision-maker had made a decision. If a party did not do so, the court had a discretion to refuse to allow the claimant to rely on evidence and grounds not relied upon before the decision-maker. The judge correctly identified the existence of that discretion and exercised it properly here.

Lord Banner KC, with Mr Henderson, for Cala and Mr Stinchcombe KC for Headlands adopted Mr Simons’ submissions.