Knockout Blow for Paul Stinchcombe KC in Defending Green Belt Planning Permission for Former World Boxing Champion
In Keep Chiswell Green v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 958, 39 Essex Chambers’ barrister Paul Stinchcombe KC successfully defended the Secretary of State’s decision to grant the former world boxing champion, Steve Collins, planning permission for 330 homes in the Green Belt in Chiswell Green, near St Albans, all of them affordable and all of them for key workers.
Named after the Minister who built homes for heroes after the Great War, “Addison Park” was promoted to meet the needs of those who fought on the frontline throughout the Covid pandemic but could not afford to buy in one of the most expensive boroughs in the country, and yet earned too much to be eligible for social rented housing as well. Having recovered the appeal for himself, and by a decision letter dated 22nd March 2024, Michael Gove agreed with his Inspector who stated as follows, having earlier found the housing delivery in St Albans to be “dire”:
“Such a scheme is unquestionably a positive aspiration that would go a long way towards boosting the Council’s supply of affordable housing. In the context of such a great housing need, I attach very substantial weight to the proposed housing.”
However, a local action group, “Keep Chiswell Green”, challenged the decision to grant planning permission upon the grounds that, in so deciding, the Secretary of State had failed to take into account the Arup Green Belt Review, commissioned by the Council for the purposes of their next Local Plan, which had been published after the Inquiry but before the decision letter had been issued, and which recommended keeping the Appeal Site in the Green Belt. Keep Chiswell Green did so despite the fact that neither they nor the Council saw fit to bring the Arup Review to the Secretary of State’s attention.
At first instance, Keep Chiswell Green’s challenge was dismissed by Mrs Justice Lang on two grounds:
- Applying the decisions of in West v First Secretary of State [2005] EWHC 729 (Admin) and Mead Realisations Ltd v Secretary of State for Levelling-up, Housing and Communities [2024] EWHC 279 (Admin), [2024] PTSR 1093, Keep Chiswell Green could not rely on a matter which they could, and should, have raised before the Secretary of State; and
- Applying the approach in R (Friends of the Earth Ltd and another) v Secretary of State for Transport [2020] UKSC 52, [2021] PTSR 190, the Arup Review was not a mandatory material consideration which the Secretary of State needed to take into account, given that he had the benefit of a detailed report from the Inspector who had considered the Green Belt issues for himself following a site inspection.
Keep Chiswell Green appealed to the Court of Appeal against Mrs Justice Lang’s decision on both grounds. However, that appeal was dismissed, with Lord Justice Lewis holding as follows in a judgment with which Lady Justices Andrews and Laing agreed:
“78. … For my part, the sensible course of action is, in fact, to consider whether the new consideration is a material consideration, that is, is one that is so obviously material to the decision that it would be irrational for the Secretary of State to reach a decision without taking it into account.
…
83. Applying the approach in Friends of the Earth, the conclusions in the Arup Review were not so obviously material to the decision being taken that it would be irrational, and therefore, unlawful for the Secretary of State not to take into account. I reach that conclusion for the following reasons.
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88. … [T]he inspector himself assessed the harm and the benefits and weighed the benefits against the substantial harm, to determine whether these two appeals should be allowed and planning permission granted for these two developments. In those circumstances, the fact that the Arup Review reached different conclusions … was [not] so obviously material to the decision that the Secretary of State had to reach that it was irrational for him not to have regard to it.
89. That conclusion is reinforced by the fact that the Council did not suggest to the Secretary of State that the Arup Review was material to his decision, still less so obviously material that he would be acting unlawfully if he failed to take it into account. The Council was the party who had refused planning permission and was opposing the appeals. It had commissioned the Arup Review as part of the emerging local plan process. It did not provide a copy to the Secretary of State. It has taken no active part in these proceedings. The question of whether a consideration is so obviously material that it would be unlawful for the decision-maker not to take into account is ultimately a matter for the court. The fact that the Council has not suggested, however, that the Arup Review is material to the issue that had to be decided reinforces the conclusion that I have reached. I also note that the appellant, which knew about and had commented on the Arup Review, did not suggest to the inspector or the Secretary of State that the Arup Review was material to the decision that he had to make. I would therefore dismiss the appeal…”.
