Planning decisions and post-inquiry developments
A recent Court of Appeal’s decision provides important guidance on how planning decision-makers must approach material considerations that come to light after a planning inquiry has closed but before the final decision is issued.
Background
The case of Keep Chiswell Green v Secretary of State for Housing, Communities and Local Government and others [2025] EWCA Civ 958 was brought under section 288 of the Town and Country Planning Act 1990, which provides a mechanism for parties to challenge a decision of the Secretary of State. The community group in this case argued that the Secretary of State had failed to have regard to the so-called “Arup review.” After the inquiry closed but before the Secretary of State’s decision, the local authority published the Arup review as part of its emerging local plan process, which in summary concluded that "the sub-area plays an important role with respect to the strategic land parcel, and its release in isolation or in combination would harm the performance of the wider Green Belt".
Despite this, the Secretary of State accepted the inspector’s recommendations and granted permission for both developments. No party placed the Arup review before the Secretary of State, whose decision letter did not refer to it, and the group challenged the decision on the basis that failing to consider the review was irrational and unlawful.
The Court’s Findings
The Court of Appeal confirmed that a party is not procedurally barred from bringing a section 288 challenge simply because they had not placed new evidence before the Secretary of State, noting that the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 provide no mechanism for introducing further evidence after an inquiry has closed, even if the evidence only became available later.
There was a critical distinction between evidence that could have been raised at the inquiry level, but the parties chose not to, and evidence that came to light after the fact.
- Where the material could have been raised at inquiry level but was not, a section 288 challenge is unlikely to be entertained by the court (as was the case in West v First Secretary of State [2005] and Mead Realisations Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] which were distinguished).
- Where new post-inquiry material was not put before the decision maker, the question was simply whether it was a material consideration to which the decision-maker was obliged to have regard. The Secretary of State could therefore be found to have acted irrationally in failing to consider an obviously material development, even where it had not been brought to their attention.
On the facts, the Court held that the Arup review was not so obviously material that it would have been irrational for the Secretary of State to disregard it. The review did not amount to such decisive evidence that his failure to consider it rendered the decision unlawful. Accordingly, the appeal was dismissed, and permission for both developments stood.
Key Takeaways
The case underlines the importance of vigilance in the period between the close of an inquiry and the issuing of a decision. Developers must be aware that new evidence could threaten an otherwise favourable outcome, while objectors may take comfort from the principle that material considerations arising in that period should not be overlooked.