In (1) Villages Action Group (2) Michael Turner v (1) Secretary of State for Communities and Local Government (2) Arun District Council [2015] EWHC 2729 (Admin) the Planning Court (part of the Administrative Court) refused to infer that the decision-maker had failed to take into account a material consideration simply because this had not been addressed in the decision letter.

  1. Key Points
  • A decision will be deemed to contain adequate reasoning if it is possible for a party to the decision to understand why the decision was reached and what the conclusions were on the principal controversial issues;
  •  the Court will not assume from the fact that a material consideration is not mentioned in the decision that the decision-maker failed to take this into account if adequate reasons have been provided; and
  • if the Court is uncertain whether, if a consideration were taken into account, there would be a real possibility that a different conclusion would have been reached they will generally defer to the decision-maker.
  1. Background

Arun District Council ('the Council') initially rejected an application for planning permission for a residential development on land which was surrounded by existing residential premises, vacant land and Aldingbourne Primary School ('the School'). However, on appeal outline planning permission was granted for the development of 79 dwellings.

The First Claimant, a local residents' association, applied to quash this decision as this impinged upon the possibility of expansion of the School. They claimed that the planning officer erred in reaching her decision as she:

  1.  failed to consider the emerging draft Neighbourhood Plan which stated that developments of primary school facilities "will be supported"; and
  2.  failed to supply adequate reasons for dismissing the Claimants' concerns over the potential restriction to future development of the School in the decision letter.
  1. The Decision

The Court found in favour of the Defendants on both grounds. In doing so, it raised the question of whether the Neighbourhood Plan was a material consideration; finding in any event that this was considered and the reasons provided were adequate.

Was this a material consideration?

Lang J noted that the Court would only hold that a decision is invalid as a result of failure to consider a particular issue if there was a real possibility that, had the issue been considered, the decision-maker would have reached a different conclusion. This was not the case here as, although the draft Neighbourhood Plan did suggest that development of schools would be supported, there were no realistic plans for the expansion of the School. Further, the Council had noted that "minimal weight" should be given to the emerging Neighbourhood Plan as this was an early draft.

Even if it had the potential to be a material consideration, in this instance the planning officer need not have considered the draft Neighbourhood Plan. Lang J noted, having considered the case law, that parties to a planning appeal must raise all issues they wish the inspector to consider, except to the extent the inspector is already required to consider these by statute. In this case the Claimants had failed to provide either the initial or subsequent drafts of the Neighbourhood Plan to the planning inspector. Similarly, although the Claimants had made reference to the Neighbourhood Plan they had failed, in all but one of their references, to draw any link between the Neighbourhood Plan and the site in question. Given this and the fact that "the relevance of the draft Plan to the issues was doubtful [and…] scant reliance was placed upon it" the Claimants could not now seek to quash a decision on the grounds that the inspector failed to have regard to the Neighbourhood Plan.

Consideration of the issue and the adequacy of reasoning

The Court identified that the reasons given would be adequate provided that they enabled the receiver, who could be assumed to be "well aware of the issues involved and the arguments advanced" to understand "why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved". Here, the issue of future expansion of the School had not been one of the main controversial issues and as such the reasons given in the decision were adequate, despite making no reference to this.

Since there was no requirement for the decision to provide reasoning on all issues, it could not "be assumed that if a material consideration is not mentioned, it has been overlooked". In the absence of this assumption, the Court found no basis for finding that the decision-maker had simply overlooked the submissions put to her regarding the expansion of the School and the Neighbourhood Plan. As such, the Court concluded that the planning officer had, in fact, taken into account the Neighbourhood Plan.

  1.  Comment

The judgment identifies that the duty to provide reasons for a decision does not mean the decision-maker is required to detail all the issues considered and the conclusions reached on each of these. Instead, it should be sufficient to provide reasons for decisions on the main issues and points of controversy.

Similarly, this highlights 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 this consideration is not referred to in the decision. If a claimant wishes to challenge a decision on the basis of a failure to take into account a material consideration which 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.

Finally, it is notable that the Court criticised the Claimant for not sending the decision-maker copies of the document which they thought should have been taken into account, despite making representations on more than one occasion. This highlights the importance of making full and thorough representations during a decision-making process.