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

Applying the approach in Friends of the Earth, the conclusions in the Arup Review was not so obviously material to the decision being taken that it would be irrational, and therefore, unlawful for the Secretary of State not to take into account. I reach that conclusion for the following reasons.

The Secretary of State was concerned with an appeal against the refusal of each of two applications for planning permission. The proposed development was within the area of the green belt. The Secretary of State accepted the inspector’s assessment that the proposed development would cause substantial harm to the green belt and attached substantial weight to that factor. The principal issue was whether other factors, principally housing, amounted to very special circumstances which outweighed the acknowledged harm to the green belt and justified the grant of planning permission for the two proposed developments.

First, the Arup Review was not addressing that issue. It was a review commissioned by the Council as part of the process of adopting a local plan. It was concerned with making recommendations as to whether areas of land should be released from the green belt. It was not concerned with whether planning permission should be granted for particular developments at particular sites within the green belt. Further, the plan-making process was at an early stage. The conclusions and recommendations in the Arup Review had not yet been accepted and incorporated into a draft plan and they had not been tested at an examination by an independent examiner. In those circumstances, I do not consider that the Arup Review was so obviously material that it would be irrational for the Secretary of State not to have regard to it in deciding whether to allow these two appeals and whether to grant permission for each of these two proposed developments.

Mr Riley-Smith submitted that the inspector had regard to the second stage of the SKM review and regarded that as an important consideration in assessing the planning balance in deciding whether there were very special circumstances which outweighed the harm to the green belt. The Arup Review had been prepared for the same purpose as the SKM, and superseded it. The recommendations in the SKM review had not been accepted and had not formed the basis for the local plan (it had been subject to criticism and the draft local plan had been withdrawn) yet the inspector relied upon it as an important consideration. He submitted that the position was the same in relation to the Arup Review: it had been prepared for the purposes of a local plan but its recommendations have not been accepted. If the inspector had had both the 2^nd stage SKM Review and the Arup Review before him, he could not have concluded that the conclusions in the areas identified in the 2^nd stage SKM were the most suitable development in the green belt as the Arup Review came to a different view. That demonstrated that the Arup Review was so obviously material that it would be irrational and unlawful for the Secretary of State not to take it into account.

I do not accept that submission for the following reasons. Reading the inspector’s report as a whole, it is clear that he considered that the conclusions of the 2^nd stage SKM Review “cannot be directly applied to the appeal proposals” as it was looking at the district on a large and strategic basis and was considering the potential release of land from the green belt through the plan making process (see paragraph 531 of his report set out above). The inspector did refer at paragraph 533 of his report to the relative suitability of the areas identified in the 2^nd stage SKM review as an important consideration. He then proceeded, however, to consider each site in turn at paragraphs 534 to 550 of his report. He analysed the harm that each of the proposed developments would do to the green belt in terms of the impact on the openness of, and purposes underlying, the green belt. He concluded in each case that that the harm would be substantial and attached substantial weight to that harm when carrying out the planning balance. He then considered the benefits that would result from the proposed developments, principally additional housing, and concluded that the benefits did amount to very special circumstances which outweighed the harm to the green belt in each case (see paragraphs 606 to 611). The 2^nd Stage SKM review did not add to, or diminish the harm to the green belt.

As Mr Riley-Smith accepted, there is no reference to the conclusions in the 2^nd stage of the SKM review in the assessment of the benefits, or in the overall planning balance At most, as Andrews LJ observed in argument, the inspector referred to the conclusions in the 2^nd stage of the SKM review to check his own evaluation of the two sites. That appears most clearly from paragraph 550 of the report where he said that he considered that the SKM Review “accords with my own findings that the Green Belt Impacts would be much greater from Appeal Site B”. In other words, the inspector himself assessed the harm and the benefits and weighed the benefits against the substantial harm, to determine whether these two appeals should be allowed and planning permission granted for these two developments. In those circumstances, the fact that the Arup Review reached different conclusions from the 2^nd stage SKM review does not mean that the Arup Review was so obviously material to the decision that the Secretary of State had to reach that it was irrational for him not to have regard to it.

That conclusion is reinforced by the fact that the Council did not suggest to the Secretary of State that the Arup Review was material to his decision, still less so obviously material that he would be acting unlawfully if he failed to take it into account. The Council was the party who had refused planning permission and was opposing the appeals. It had commissioned the Arup Review as part of the emerging local plan process. It did not provide a copy to the Secretary of State. It has taken no active part in these proceedings. The question of whether a consideration is so obviously material that it would be unlawful for the decision-maker not to take into account is ultimately a matter for the court. The fact that the Council has not suggested, however, that the Arup Review is material to the issue that had to be decided reinforces the conclusion that I have reached. I also note that the appellant, which knew about and had commented on the Arup Review, did not suggest to the inspector or the Secretary of State that the Arup Review was material to the decision that he had to make. I would therefore dismiss the appeal on ground 2.