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Green Belt housing development in Herts
R (Keep Chiswell Green) v SSLUHC & Ors
We were instructed by a group of concerned residents, Keep Chiswell Green, to bring judicial review proceedings against the Planning Inspector decision granting permission for the development of 721 houses in Hertfordshire situated in a green belt area. The claim was dismissed by the High Court, and we applied for a permission to appeal to the Court of Appeal.
We have applied to appeal in the Court of Appeal on an interesting interpretation of the application of the principle in R (On the Application of Erine Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 and the extent of the duty under s70(2) TCPA 1990 to have regard to “any other material circumstances” .
The High Court case concerned two adjacent housing developments in aggregate 721 houses at Chiswell Green, Hertfordshire. Originally, the applications were refused by St Albans & City District Council on the basis that the development was in the Metropolitan Green Belt and no “very special circumstances” had been shown. The two developers appealed, and a conjoined Inquiry held during 2023. The appeal was then recovered by the SoS, who granted permission. Key to that decision was the application of the then current Green Belt Review (“GBR”) to the sites.
We act for Keep Chiswell Green (“KCG”), a local group of concerned residents that appeared at the appeal Inquiry as a Rule 6 Party, and who subsequently lodged a s288 judicial review claim. We argued that a new GBR commissioned by the Council, which put more emphasis on the value of the development sites and clearly superseded the previous reviews, was published after the end of the Inquiry but before the SoS’s decision. Before its publication, it was referenced (as imminent) in the Inspector’s report and by the Council and developer in correspondence with the SoS. It was therefore known about, of direct relevance and, following Kides, should have been taken into account as a material consideration. There was, however, no reference in the SoS Decision Letter to the new GBR.
That claim was dismissed by Mrs Justice Lang DBE in October 2024 . She found inter alia that a different line of cases: West v First Secretary of State [2005] EWHC 729 (Admin) and Mead Realisations Limited v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 279 (Admin) operated as a procedural bar preventing us from running a Kides argument.
Permission to appeal has been granted by the Court of Appeal.
Susy Gandy and Lisa Foster for were instructed. Piers Riley-Smith of Kings Chambers is instructed as counsel.
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Commentary
We disagree with this interpretation. Kides remains the leading case on s70(2), that the duty on a decision maker to have regard to material considerations exists up until the date of the decision, and where the decision maker is aware (or ought reasonably to have become aware) of a new material consideration, the s70(2) duty requires them to have regard to it.
In West, it was held the parties to a planning appeal must place before the decision maker the material on which they rely. The Inspector is not required to unilaterally inquire further to see if there was further evidence supporting the case. West concerned evidence which could have been raised to the Inspector at the time of submissions (because it was already in existence) and West makes no reference to the s.70 (2) duty nor Kides.
Mead held that the Claimant couldn’t rely on an argument about planning merits which they could have run at the appeal but were raising for the first time in the High Court. Again, in Mead there was no reference to or discussion of Kides.
The three cases (Kides, West and Mead) are clearly factually different. The West/Mead cases concerned considerations/arguments which could have been made at the appeal hearing but were not made due to the error of the claimant. This is factually different from Kides – and our case for KCG – where the consideration could not have been raised at the appeal hearing because it did not then exist. It only arose after the appeal hearing had closed when the new GBR was published.
Mrs Justice Lang accepted the SoS’s argument that we were procedurally barred from running a Kides argument because KCG had not raised the point themselves. But this undermines the Tameside duty of sufficient inquiry – that there may be material considerations which a decision maker will have to inquire after even if no party has raised it. Further, that the effect of her judgment (given she accepted that the decision maker was aware of the new GBR) is that a decision maker is entitled to ignore a potentially material consideration that is known to them, just because the KCG (who was not then professionally represented) themselves had not raised it. That, we say, is clearly illogical.