The decision of the Planning Court (part of the Administrative Court) in Villages Action Group and another v Secretary of State for Communities and Local Government and others  EWHC 2729 (Admin) reiterates some key public law concepts relating to decision-making, such as what is a material consideration and the duty to give reasons. Although there has been an increasing trend in common law for decision-makers to give reasons for their decisions, the present legal position is that there is no general duty on public bodies to give reasons for their actions or decisions. In Villages Action Group, a case concerning a challenge to the refusal of an application for planning permission for residential development on land, the Planning Court refused to infer that the decision-maker (a planning inspector) had failed to take into account a material consideration simply because this had not been addressed in her decision letter.
Brief background facts
Arun District Council, the second defendant, had initially rejected an application for planning permission for a residential development on land that was surrounded by residential properties, a primary school and its playing field and some other small areas of open land. However, the third defendant (the owner of the freehold title of the land) successfully appealed the council’s refusal to grant permission and, following a public local inquiry, the planning inspector granted outline planning permission. Therefore, the claimants (a residents’ association group) issued a claim under section 288 of the Town and Country Planning Act 1990 (TCPA 1990). Their grounds of challenge related solely to the loss of potential space for expansion for the school and they submitted that the planning inspector had erred in failing to:
- Have regard to a material consideration, namely the emerging draft Neighbourhood plan (draft plan), which referred in its January 2015 draft to the development of primary school facilities being supported.
- Supply adequate reasons for dismissing the concerns of the claimants, the parish council and other local residents about the potential restriction to future development of the school in the decision letter.
Section 288 of the TCPA 1990 provides that a person, aggrieved by any order made under the section and wishing to question its validity, may apply to quash a decision on the grounds that it is not within the powers of the Act or any of the relevant requirements have not been complied with, resulting in substantial prejudice to the interests of the applicant.
The general principles of judicial review apply to a challenge under section 288 of the TCPA 1990; therefore a claimant must establish that:
- The Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations.
- There had been some procedural impropriety.
So what is a material consideration and do all material considerations need to be taken into account?
A decision-maker will err in law if he fails to take into account a material consideration. The tests to be applied in deciding whether or not a consideration was material and so ought to have been taken into account by a decision-maker were set out by Glidewell LJ in Bolton Metropolitan Borough Council v SSE (1990) 61 P & CR 343, at 352. They can be summarised as:
- The decision-maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. The verb “might” means where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.
- If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision, and thus it is not a matter that the decision-maker ought to take into account.
- There is clearly a distinction between matters that a decision-maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question.
- If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter that might have caused him to reach a different decision, it is for the judge to decide whether it was a matter which the decision-maker should have taken into account.
- If the judge concludes that the matter was “fundamental to the decision”, or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the necessary material to conclude that the decision was invalid.
- Even if the judge has concluded that he could hold the decision to be invalid, he is entitled nevertheless in exceptional circumstances, and in the exercise of his discretion, not to grant any relief.
However, a decision-maker is not required to address every material consideration, however insignificant, in his decision. He is only required to deal with the “main” or “principal important controversial” issues; it cannot therefore be assumed that if a material consideration is not mentioned it has been overlooked.
These principles were explained in another planning case, Bolton Metropolitan District Council and others v Secretary of State for the Environment and others (1996) 71 P.& C.R. 309, at 313-314. In this case, the judge stated that even though the Secretary of State had to have regard to all material considerations before reaching a decision, and then state the reasons for his decision to grant or withhold planning consent, there was nothing in the statutory language that requires him, in stating his reasons, to deal specifically with every material consideration. If he had to do so, his task would never be done and his decision letter would be as long as the inspector’s report. What was fundamental was the reasons for the decision were stated in sufficient detail to enable the reader to know what conclusion has been reached on the principal important controversial issues.
Decision of the Planning Court
Applying these principles to this case, the Planning Court dismissed the claim finding for the defendants on both grounds. In doing so, it considered whether the draft plan was a material consideration as the claimants alleged but decided that the council was entitled to take the view that it was not a material change in circumstances of which the inspector ought to be made aware. The draft plan was still at an early stage of the adoption process and therefore only attracted “minimal weight”. In addition, given the fact that the claimants had failed to draw any link between the draft plan and the site in question, or provide a copy to the inspector as a document that she ought to take into account at the planning inquiry, it was not open to them to seek to quash a decision on the basis that the inspector failed to have regard to the plan.
What this case highlights is the fact that the courts will not be quick to assume that a decision-maker has failed to take into account a material consideration simply because that consideration is not referred to in the decision. Therefore, if a claimant wishes to challenge a decision on the basis of a failure to take into account a material consideration that is not a main controversial issue, they should aim to produce actual evidence that this issue was not considered, rather than a mere absence of reference in the decision itself. For more information on decision-making, see Practice notes, Decision-making by public bodies: avoiding legal challenge and Duty to give reasons.