Connolly v Secretary of State for Communities and Local Government [2009] EWCA Civ 1059

Key point

  • There had been unfairness arising out of a mistake of fact as there was a failure to inform a planning inspector about the full planning history of a property


  • The respondents, C, had a neighbour, X, who applied for planning permission to alter the north and south sides of his property
  • The local authority refused permission as it opposed the proposal to alter the south side
  • X applied for permission again only for the north side, but as C received notice about the proposal and objected to it, permission was refused again
  • X appealed to a planning inspector, who was only informed about the first planning permission application and as such granted planning permission for the north side
  • In the Court of Appeal, C’s appeal was allowed, and it was ordered that the decision of the planning inspector be quashed
  • The matter was remitted to the Secretary of State for determination


  • Had there been an error in proceedings before the planning inspector, whereby she had not been informed of the whole planning history of the property?
  • Could an allegation of unfairness be removed, where new evidence shows that the missing planning history was irrelevant and totally immaterial?

Held (Court of Appeal)

  • Appeal dismissed; there had been unfairness arising out of the failure to inform the planning inspector about the full planning history of the property
  • A last-minute attempt to introduce new evidence in support of an unpleaded ground of appeal disregards the finding of the judge below and as such, this point was rejected

Rix LJ

Mistake of fact

  • In this case, there has been ‘unfairness arising out of a mistake of fact’: [37]
    • The mistake was ‘the omission of reference to [the council’s] negative views about what was accepted as a materially identical proposal in relation to the northern flank’
    • This evidence was uncontentious and objectively verifiable
    • C was not personally responsible for the mistake
    • The mistake had played a material part in the inspector’s reasoning

Admissibility of new evidence

  • The new evidence is inadmissible, as it does not satisfy the ‘three tests of Ladd v Marshall (…) or any broader discretion founded on the interests of justice’: [54]
  • ‘Even if it would be admissible, there is no evidence as to [the council’s] views that [the second application] and its refusal were an irrelevant part of the planning history’ [55]


  • This judgment relied upon E v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044 as a significant authority for the establishment of the doctrine of mistake of fact. Whilst E concerned an appeal in the context of asylum law, the Court of Appeal noted in that judgment that its analysis would also apply in the context of planning inquiries, where there is ‘public interest (…) in ensuring that development control is carried out on the correct factual basis’: [65]
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