The claimants challenged the secretary of state’s decision to grant permission on appeal for 50 homes at Newick, East Sussex (DCS Number 200-005--811), citing his inconsistent treatment of a saved local plan policy that he had determined to be out of date.
Just two months previously, he had taken the opposite view on another housing proposal in the same district at Ringmer (DCS Number 200-005-570). The claimants argued that he had reached the wrong conclusion at Newick and had failed to explain the inconsistency of his decision with the approach taken at Ringmer. The secretary of state pulled out before the case got to court, conceding that he "should probably be cognisant of decisions in his own name". The developer soldiered on to defend the claim alone.
In examining when a failure to take account of a matter is unlawful, deputy judge John Howell QC applied a familiar test – whether the matter was one that no reasonable decision-maker would have failed to take into account in the circumstances. He then turned to the public interest in securing reasonable consistency in the exercise of discretion by decision-makers. This may mean that it is unreasonable for decision-makers not to take into account other decisions that may have some bearing on the decision in hand. Whether or not a matter is relevant will depend on the circumstances.
The purpose of the secretary of state’s power to recover appeals is one such matter. It is intended, in part, to ensure coherence and consistency in decision-making. As such, the court ruled, avoiding "apparent and unexplained inconsistencies in the secretary of state’s own decisions on matters that may have ramifications for decision-making in other cases is an important consideration in determining what may be required of him if he is not to act unreasonably".
The court found that a reasonable decision-maker would not have failed to take steps to ensure that he had not issued another decision on the same question. On that basis, it held, the secretary of state unlawfully failed to take into account his previous decision when determining the Newick appeal. This case serves as a valuable reminder that, while decision-makers should not slavishly follow what has gone before, planning law abhors a vacuum.
CASE Baroness Cumberlege of Newick and Another v Secretary of State for Communities and Local Government and DLA Delivery Ltd; Date: 4 August 2017;  EWHC 2057 (Admin)
David Wood is a senior associate at Hogan Lovells International LLP