Keep Chiswell Green v Secretary of State for Levelling Up, Housing and Communities & Ors

29 October 2024

[2024] EWHC 2723 (Admin)

High Court

A community group challenged a government decision approving new homes in a protected green space. They argued the government ignored a new report showing the development was harmful. The court said the group should have raised this report earlier, and the government didn’t have to consider it because it wasn't crucial information.

Key Facts

•Statutory review of the Secretary of State's decision to allow two appeals for residential developments in the Green Belt.
•Claimant: Keep Chiswell Green, a local community group.
•Defendants: Secretary of State, Cala Homes, Headlands Way Limited, St Albans City and District Council.
•Issue: Whether the Secretary of State unlawfully failed to consider the Arup Green Belt Review, published after the inquiry but before his decision.
•Arup Review superseded the SKM Review, used as evidence during the inquiry.
•Council did not participate in the proceedings.
•Claimant argued the Arup Review was a material consideration and the Secretary of State failed to meet the duty of sufficient inquiry.
•Defendants argued the Claimant could not rely on new material not presented to the Secretary of State, and the Arup Review was not a mandatory material consideration.

Legal Principles

Duty to have regard to material considerations (section 70(2)(c) TCPA 1990).

Town and Country Planning Act 1990

Duty of sufficient inquiry (Secretary of State for Education and Science v Tameside MBC).

Secretary of State for Education and Science v Tameside MBC [1977] AC 1014

Test for 'obviously material' considerations (R (Friends of the Earth Ltd) v Heathrow Airport Ltd).

R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52

Principles regarding new material and arguments in High Court challenges (West v First Secretary of State; Mead Realisations Limited v Secretary of State).

West v First Secretary of State [2005] EWHC 729 (Admin); Mead Realisations Limited v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 279 (Admin)

Kides test for material considerations arising after a decision but before issuance of a decision notice.

R (Kides) v South Cambridgeshire DC [2002] EWCA Civ 1370

Inquiries Procedure Rules 2000, rule 17(4): Secretary of State may disregard representations received after the inquiry closes.

Inquiries Procedure Rules 2000

Simplex test: Whether the outcome would necessarily have been the same even if the error of law had not occurred.

Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041

Outcomes

Application for statutory review dismissed.

The Claimant failed to raise reliance on the Arup Review before the Secretary of State's decision, breaching the principle of bringing forward the whole case in a planning appeal. The Arup Review was not considered an 'obviously material consideration' requiring its inclusion, and the Secretary of State acted rationally in not considering it given the circumstances.

Keep Chiswell Green v Secretary of State for Levelling Up, Housing and Communities & Ors

Key Facts

Legal Principles

Outcomes

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