The Curious Case of the Development in the Green Belt: Lessons from "Keep Chiswell Green"
On 29 October, in a move almost guaranteed to be overshadowed by the Budget, the High Court handed down its decision in Green v Secretary of State for Levelling Up, Housing and Communities & Ors [2024] EWHC 2723 (Admin).
The case is interesting for a number of reasons:
- It is the latest gambit in a long running battle over residential developments in the St Alban's green belt;
- It considers key procedural questions over when a claimant can rely on grounds not raised in the underlying appeal, and how to approach matters raised post-inquiry; and
- I am writing this at a soft play, and reviewing case law is preferable to being shot with foam balls or getting stuck in a tunnel designed for a pre-schooler*
In short, it is worth a read…. and not just as a way to stay sane at a soft play centre.
I am not going to get into the background of the case in any great detail. At a very high level, the challenge is a statutory review against the Secretary of State's decision to grant permission for two residential developments on adjacent sites within the Metropolitan Green Belt, in Chiswell Green, near St Albans, Hertfordshire.
The key points of argument relate to whether the Secretary of State was entitled to not take account of an updated green belt review, commissioned by the Council to support its emerging local plan, which was published after the close of the inquiry.
Crucially, no one (not even the Claimant) had sought to introduce or rely on that later green belt review report before the Appeal Decisions had been published. Nor was a copy of the relevant report provided to the Inspector or the Secretary of State.
With that background out of the way, let's get into the judgment. In the usual way, anything in quotation marks is lifted directly from the judgment. Any typos or errors are my own.
The first key question before the Court was as follows:
"Preliminary issue – whether the Claimant is permitted to advance an argument in the High Court based on new material and argument that was not placed before the Inspector or the First Defendant
65. The general rule is that it is incumbent on the parties to a planning appeal to place before the decision maker the material on which they rely: West v First Secretary of State [2005] EWHC 729 (Admin), per Richards J., at [42]. A party to a planning appeal must be expected to tell the decision maker all he wishes to tell them: West at [43]. In general, the determination of a planning appeal does not require the decision maker to go beyond proper consideration of the material put forward by the parties: West at [44].
….
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.
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.
81. For these reasons, Ground 1 does not succeed. However, for the sake of completeness, I now go on to consider the other grounds."
Did the Secretary of State fail to take into account an obviously material consideration by not taking into account the post-inquiry green belt review?
"86. The Arup Review was in the third category of consideration. Applying the principles set out in Friends of the Earth Ltd, I consider that the First Defendant 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."
Did the Secretary of State take sufficient steps to inform himself about the findings of the post-inquiry green-belt review?
"94. Under rule 17(4) of the Inquiries Procedure Rules 2000, the First Defendant could disregard any representations or evidence or other document after the close of the inquiry (subject of course to the requirement to act lawfully). At DL/9, the First Defendant decided that the representations made inter alia in respect of the Arup Review in the post-inquiry correspondence did not warrant further investigation or necessitate additional referrals back to the parties.
95. In my view, the First Defendant’s decision to decide the appeals without making further inquiries into the Arup Review was a rational one which he was entitled to make. The Arup Review was not relied upon by the Council or the Claimant in resisting the appeal, and together with the Second Defendant, they asked the First Defendant to disregard the references made to it, in the post-inquiry correspondence.
96. As stated above, the First Defendant had the benefit of a detailed report from the Inspector who had considered the Green Belt issues in depth, including the SKM Review. The Arup Review was part of the evidence base for the emerging local plan, not a report in the appeals, and it did not address the main issue identified by the Inspector and the First Defendant.
97. For these reasons, Ground 1 does not succeed."
Conclusion
So what can we learn from the curious case of Keep Chiswell Green?
Well firstly, and most importantly, try not to base a claim for statutory review on arguments, material or evidence that were not raised in the underlying appeal.
In the words of the Mrs Justice Lang, failing 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”, is unlikely to result in a sympathetic hearing in the Admin Court.
Secondly, not everything that may appear relevant to a decision at first glance will amount to an “obviously material” consideration that a decision maker is bound to take into account by law - particularly if it comes to light after the close of an inquiry.
And finally, I will clearly go to quite extreme lengths to avoid getting stuck in** at soft play.
*this has happened before. It was not my most dignified moment.
**or, at least, stuck
Preliminary issue – whether the Claimant is permitted to advance an argument in the High Court based on new material and argument that was not placed before the Inspector or the First Defendant
The general rule is that it is incumbent on the parties to a planning appeal to place before the decision maker the material on which they rely: West v First Secretary of State [2005] EWHC 729 (Admin), per Richards J., at [42]. A party to a planning appeal must be expected to tell the decision maker all he wishes to tell them: West at [43]. In general, the determination of a planning appeal does not require the decision maker to go beyond proper consideration of the material put forward by the parties: West at [44].”
Key Contact
