Are previous appeals relevant?
Previous appeal decisions are relevant according to the High Court. In a Judgment issued on 29/01/2019, the High Court ruled that an earlier appeal decision is capable of being a material planning consideration that must be taken into account by an appeal Inspector.
This issue was tested in a legal challenge by Gladman Developments against the Secretary of State for Housing, Communities and Local Government and Central Bedfordshire Council, case number [2019] EWHC 127 (Admin). The court agreed with Gladman that the Planning Inspectors Decision was fatally undermined by his failure to consider a previous appeal decision on a similar case.
When is an appeal relevant?
A previous appeal is relevant if the issue in question is the same, for example whether a policy is up-to-date, whether a five year supply exists, whether a Council has failed the Housing Delivery Test, and whether the presumption in favour of sustainable development applies. Where the facts or policy background is identical, then decisions must be made in consistent manner unless the Inspector can give good reasons otherwise.
Recent similar appeals
To be sufficiently similar, an appeal should be indistinguishable on an issue of critical importance in its determination, such as the interpretation and application of a relevant and significant policy in the development plan.
What if appeal decisions contradict one another?
In this case, the issue was whether a policy on Countryside was inconsistent with the National Planning Policy Framework and therefore out of date. Mr Justice Dove noted that there were a number of previous appeal decisions falling either side on the same issue. He ruled that contradictory appeal decisions did not resolve the Inspector from doing what is required, namely rising to the task of examining the earlier decisions which had been reached in respect of this question and explaining why he had reached a conclusion which conflicted with some of those earlier decisions, and providing the reasons for him departing from those conclusions which differed from his own. (paragraph 29 of his Judgment).
Case law on appeals being material considerations
The Judge referred to previous case law, referring first to the Courts decision in North Wiltshire DC v Secretary of State for the Environment [1993] 65 P&CR 137. In that case the Judge had stated as follows:
"One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision."
"To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in a previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate." (paragraph 16 of Gladman v Bedfordshire Judgement [2019] EWHC 127).
Confirmation by the Court of Appeal
Mr Justice Dove noted that his approach had been endorsed and applied in three cases in the England & Wales Court of Appeal (EWCA), listing these in paragraph 17 of his Judgment, namely, Dunster Properties Limited v First Secretary of State [2007] EWCA Civ 236 2 P&CR 51; and in R v on the application of Fox Strategic Land and Property Limited v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198; [2013] 1 P&CR 80. This principle was also applied in the recent case of DLA Delivery Limited v Baroness Cumberlege of Newick [2018] EWCA Civ 1305.
Implications
It is tempting for Inspectors to fall back on the uniqueness of each site to discount previous appeal decisions. However if those previous decisions affect the status of policy or the assessment of housing need or land supply, it is important to draw these relevant appeals to the Inspector's attention along with references to case law. The Courts have made it a legal requirement that an Inspector must take them into account as material considerations.
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