The Court of Appeal in Secretary Of State For Communities & Local Government V (1) South Gloucestershire Council (2) AZ (2016) [2016] EWCA CIV 74 did not consider it appropriate to quash an inspector's grant of planning permission, on the basis that the inspector's decision would necessarily have been the same even if the 'serious errors of law' present in his reasoning had not occurred.

1. Key Points 

  • For a judge to exercise their discretion not to grant relief where they have found unlawfulness, they must be satisfied that the decision-maker would have necessarily come to the same decision even if the unlawfulness had not occurred. This is a stringent test.
  • The courts will take all the factors of a decision into account when deciding whether to grant relief, and factors such as setting an unattractive precedent should not be central to the exercise of the judge's discretion.

2. Background

The second respondent, an individual, made a planning application for a mobile home in the Bristol/Bath Green Belt. The planning inspector granted planning permission on the basis that the second respondent's health needs and personal circumstances were "truly exceptional", and that the material considerations clearly outweighed the harm that such a development might cause. During the inquiry, evidence was given on the issue of whether or not there was a five-year supply of land for housing in the area, as required by the National Planning Policy Framework.

The first respondent, South Gloucestershire Council, applied for the planning inspector's decision to be quashed under s.78 of the Town and Country Planning Act 1990 (the "Act"). The High Court allowed the appeal on the basis that serious errors of law had been committed by the inspector when considering whether the Council was able to demonstrate the required five-year supply of housing land, an issue which the inspector had clearly regarded as highly relevant. The first instance judge took the view that it was not for the court to pre-empt what the decision would have been if the legal errors had not been made; that was for an inspector to determine on the merits of the case. The High Court therefore quashed the planning inspector's decision using its discretion under s.288(5)(b) of the Act and held that the matter should be remitted to another inspector for consideration.

The Secretary of State for Communities and Local Government then appealed the issue of whether the court should have exercised its discretion in quashing the inspector's decision, arguing that even if there had been no errors of law, the inspector's decision would necessarily have been the same. 

3. The Decision

The Court of Appeal allowed the appeal. This was an example of the "extremely unusual circumstances" in which the court, in its discretion under section 288(5)(b) of the Act, should refrain from quashing a decision flawed by legal error. The High Court judge had erred in the exercise of his discretion, and the Court of Appeal exercised its own discretion to uphold the inspector's decision.

Relevant legal principles

Section 288(5)(b) of the Act provides that a court may quash an order or action if it is unlawful. The court's discretion not to quash an ultra vires decision is very narrow, and the relevant test is a stringent one. It is not enough for the court to be persuaded that the decision 'probably', 'very likely' or 'almost certainly' would have been the same were it not for the legal error; it must be persuaded that the decisionnecessarily would have been the same. It is for the appellant to satisfy a court that this is the case.

Application to the facts

There was no suggestion that the judge had exercised his discretion to quash the inspector's decision on the basis of a misunderstanding of the relevant legal principles. However, he had erred in his factual analysis. The Court of Appeal found that given the extraordinary strength of the considerations weighing in favour of the grant of permission, it was inconceivable that the inspector's decision might have been different if he had dealt with the housing land supply issue correctly.

Further, the judge's analysis and conclusions were clearly aimed to prevent any future reliance on the inspector's decision in support of planning permission applications. Whilst the Court of Appeal acknowledged that the judge's concern regarding setting an unattractive precedent was understandable, the 'precedent factor' should not have been a consideration in the judge's exercise of discretion in this case.

4. Comment

The judgment demonstrates that where unlawfulness is present in a decision, the court must consider whether that decision would have necessarily been the same if the legal errors had not occurred. Whilst the test is a stringent one and the fact that a decision would 'probably' have been the same will not be persuasive enough, it is clear that the courts will take a holistic view of cases, and will not allow legal technicalities and the fear of setting an unattractive precedent to override a decision that is substantially correct. This is analogous to the major changes recently introduced by section 84 of the Criminal Justice and Courts Act 2015, which provides that a court must refuse to grant relief in a judicial review it if appears 'highly likely' that a decision or action by the public body would not have been substantially different if the conduct complained of had not occurred. These reflect a general trend in prioritising the substance, rather than the procedure, of a decision.