Planning Reversals Based on Facts – Court Backs Narrow View

It is not often that decisions are quashed on the basis that the court in which a case was heard got the facts wrong, but a recent planning case shows that it can occur.

The case concerned a planning application which related to two sides of a property. The owners of the property to the North of the property being developed were not served with the required notice of the planning application, so did not oppose it.

The application was in any event refused, as the proposals relating to the South side of the property were regarded as unsuitable. The applicant reapplied with an amended proposal, which related only to the proposed development of the North side. The owners of the adjacent property to the North objected and that proposal was also turned down by the planning inspector.

The applicant then challenged the refusal of the original application and this application was granted by the court, but only in respect of the proposed development on the North side. However, no evidence regarding the fate of the second application was heard at that appeal, so the owners of the land to the North sought and obtained a refusal of the permission which had been granted on appeal.

At this point the Secretary of State challenged the decision by way of an appeal to the Court of Appeal, arguing that the merits of a planning application were solely for the inspector to determine, not the court, and the inspector could not be faulted for failing to take into account material which had not been brought to his attention. By turning down the application, the court had, in effect, made it obligatory for planning inspectors to take an investigative role as regards the planning histories of properties.

The Court of Appeal ruled that the proceedings would be unfair where:

there is a mistake of fact, including regarding the available evidence;the fact was in effect objectively verifiable;the appellant or his advisers were not responsible for the mistake andthe mistake played a material part in the decision-maker's reasoning.

The inspector's decision could therefore be quashed.

What is important about this case is the narrow application of the rules: it would seem, therefore, that reversals of such decisions on the basis of errors of fact will be rare.

For more information and advice please contact Clare Magill on 01752 292354