The appeal site was identified in an existing development plan as a "protected area of search" under a policy aimed at ensuring the endurance of green belt boundaries by designating land for longer-term development needs. After the outline application had been submitted, the council adopted an interim policy on protected areas of search that no longer identified the application site as suitable for development.
Following a non-determination appeal, an inspector recommended that permission be granted for the housing proposal (DCS No. 200-003-426). The secretary of state ordered the inquiry to be reopened to review whether a five-year supply of housing could be demonstrated. In the meantime, the council withdrew the interim policy. The secretary of state then refused permission, in accordance with his inspector’s conclusion that the scheme, among other matters, was not fully compliant with the interim policy.
The claimant asserted that the secretary of state had failed to take into account a material consideration – namely, the local authority’s withdrawal of the policy. The secretary of state and the council argued that the appeal had been dismissed on other grounds, so withdrawal of the policy would have made no difference to the outcome.
Mr Justice Stewart noted that the secretary of state’s decision letter incorrectly referred to the withdrawal of the existing development plan policy on protected areas of search, whereas it was the interim policy that had been withdrawn. In his view, this was a significant factual and legal error.
In withdrawing the interim policy, the council had stated that developments within protected areas of search would be determined on their merits having regard to all material considerations, including an emerging site allocations plan. The judge said he could not be sure that the withdrawn interim policy and the council’s revised stance were not material considerations that might have influenced the secretary of state’s decision.
Thornhill Estates Ltd v Secretary of State for Communities and Local Government
Date: 4 November 2015
Ref:  EWHC 3169 (Admin)