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It would seem that the judge has changed her mind.
The following is an email received from someone well versed in planning law.
I have contacted WC asking whether this shocking judgement will be taken to the Court of Appeal.
Hi All,
The link to this judgment is at http://www.bailii.org/ew/cases/EWHC/Admin/2015/1459.html
and that to the earlier judgment on 5 May 2015 is at http://www.bailii.org/ew/cases/EWHC/Admin/2015/1261.html .
Sadly, this is a truly appalling decision by a truly (redacted to save me from possibly being sued for defamation) High Court judge, and needs to be appealed to the Court of Appeal on grounds of procedural error and error of law.
The old saying is that it is a woman's privilege to change her mind, but that cannot extend to a decision handed down by a High Court judge which has already finally determined an issue, viz. [74] of [2015] EWHC 1261 (Admin):-
"In the circumstances and, with a degree of reluctance, I find that I am unable to exercise my discretion not to quash the decision letter."
Furthermore, it is plainly inconsistent and wrong not to quash the decision letter in Appeal B on the basis that the decision would have been the same in spite of the Secretary of State's error of law, but to refuse to quash the decision letter in Appeal A because the decision would almost certainly have been different and hence would deprive the Developer Defendants of the benefits of that unlawful decision letter.
The consequences of such flawed reasoning must be that a Local Planning Authority can never overturn an Appeal Decision, however serious the unlawfulness of it may be.
The judge also seems totally to have ignored the fact that Wiltshire Council is the Local Planning Authority with a duty to the public at large to ensure that the integrity of the planning system in its area is maintained and in that respect it cannot be treated as on a par with developers. There is no proper evaluation in the judgment of the harm to the public interest that will be caused by not quashing the decision letter.
In my opinion, the proper approach to the exercise of the discretion, which is supposed to be exceptional, not to quash a decision that has been found to be unlawful is that of Mr Justice Gilbart on 19 February 2015 in Davies v Carmarthenshire County Council [2015] EWHC 230 (Admin), following Bateman v South Cambridgeshire District Council [2011] EWCA Civ 157, particularly Moore-Bick LJ at [31].
Kind regards,
F****** M******