High Court Rules on Proper Approach to Split Decisions

Kay v Secretary of State for Homes, Communities & Local Government [2020] EWHC 2292 (Admin)

The case concerned applications for planning permission and listed building consent for a package of works to a listed building in the Ribble Valley. The applications were refused by the local planning authority. The applicant, Mr. Kay, appealed to the Secretary of State. The inspector who was appointed to determine the appeals found that there would be positive heritage effects as a result of part of what was proposed but that the remainder would cause less than substantial harm to the building’s special interest and that there were no ‘public benefits’ to weigh against that harm. He therefore decided to grant permission and consent for only that part which would have positive benefits and to refuse it in relation to the rest.

Mr. Kay’s primary ground of challenge was that the inspector had erred by failing to treat the positive heritage benefits which he found would arise from part of the proposals as ‘public benefits’ to be weighed against the less than substantial harm that he found in respect of other parts. In response, the Secretary of State submitted that the inspector was not obliged to approach the decision in any specific way and that, particularly as the applications had been presented as various individual elements, there was nothing unlawful or irrational in the inspector considering their pros and cons on an individual basis. Mr. Kay did not accept that this is what the inspector had done. However, in the alternative, he argued that it was nevertheless fundamentally unfair for the inspector to proceed in that that way without giving him a further opportunity to comment since it gave rise to a fundamental shift in the balance of planning considerations.

Mr. Justice Dove allowed the claim on the first ground. He agreed with Mr. Kay that what the inspector had done was to consider the proposals as a whole when deciding whether there was harm but only consider them in isolation when deciding whether there were ‘public benefits’ and that this was an error of law. Alternatively, he held that – even if the inspector had considered each part in isolation – he had still erred in law because, on the facts of the case, the different elements were so closely related that the benefits of one were necessarily a material consideration in respect of the others. However, he accepted the Secretary of State’s argument that absent such error, the inspector had no duty to invite further comment from the parties before issuing a ‘split decision’ of this sort.

John Hunter acted for the Claimant. Killian Garvey acted for the Secretary of State.

A copy of the judgment may be found here.https://www.bailii.org/ew/cases/EWHC/Admin/2020/2292.html