Town and country planning – Planning appeal – Inspector granting planning permission on appeal for stationing of mobile home in green belt for occupation by second respondent and his family – Inspector’s decision quashed on ground of error in findings relating to five-year housing supply – Whether judge erring in approach to quashing order – Whether appropriate to refuse such relief on ground that inspector’s decision would have been same in any event – Appeal allowed
The second respondent appealed to the appellant secretary of state, under section 78 of the Town and Country Planning Act 1990, against the failure of the first respondent council to determine his application for planning permission for the use of certain land in the green belt near Pucklechurch for the stationing of a mobile home for residential purposes, the formation of hardstanding and the construction of a utility building. The land had a long planning and enforcement history. The second respondent, who suffered from serious mental health issues, had been living there in a mobile home since 2005 or 2006. The proposed development would involve the removal of unauthorised development and its replacement with the new mobile home to be occupied by the second respondent, his wife and their son.
In a decision issued in July 2014, the appellant’s planning inspector decided to grant a planning permission in terms that were personal to the second respondent and his family He found the first respondents’ core strategy, when considered against the government’s Planning Practice Guidance (PPG) issued in 2014, failed to provide the five-year supply of housing land required by the National Planning Policy Framework (NPPF). He also found that, overall, there would be only very limited harm to the appearance of the area, provided that all the existing unauthorised development was removed, and he concluded that the inappropriate development in the green belt was justified by very special circumstances, including, in particular, the exceptional health needs and personal circumstances of the family.
The inspector’s decision was later quashed in proceedings brought by the first respondent under section 288 of the 1990 Act. The judge found that the inspector had erred in his findings concerning the five-year housing supply, since he had failed to take into account the conclusions of the core strategy inspector with regard to it and had misapplied the PPG.
On appeal against that decision, the appellant did not dispute that the inspector’s decision was flawed but nonetheless contended that the judge should have refused to grant a quashing order in the exercise of his discretion, since the inspector’s decision would have been the same had he not fallen into error.
Held: The appeal was allowed.
(1) The court should not normally pre-empt what the outcome of a section 78 appeal would be if identified errors of law had not been made. If the court was to exercise its discretion not to grant relief where unlawfulness had been found, it had to be satisfied that the decision-maker would necessarily have reached the same decision but for the legal error. That was a stringent test. It was not enough for the court to be persuaded that the decision would probably have been the same but for the decision-maker’s error, or that it was very likely, or almost certain, to have been the same. That was consistent the elementary principle of planning law that the exercise of planning judgment was a matter for the decision-maker and not for the court. However, the test was met on the facts of the instant case.
(2) While the inspector had considered that the lack of an up-to-date housing supply weighed in the second respondent’s favour, he had not returned to that matter in dealing with the crucial main issue in the appeal, namely whether the harm to the green belt by reason of inappropriateness, and any other harm, was clearly outweighed by other considerations so as to amount to very special circumstances justifying the development. In the part of his decision dealing with that issue, he made no mention of the lack of a five-year supply of housing land as a specific consideration weighing in favour of a grant of planning permission. It was unlikely that, had he seen that matter as a consideration of any significance in the balance which he had to strike in the particular and highly unusual circumstances of the case, he would not have said so.
The inspector’s decision made it clear that he considered the second respondent’s health needs to be truly exceptional and that the personal circumstances of the family carried substantial weight in favour of the development. He had concluded that the harm caused by the development was undoubtedly outweighed by the other material considerations. In light of those conclusions, which formed the core of the inspector’s analysis, and reading his decision letter as a whole, there was no real possibility that the presence of a five-year supply of housing land, properly identified on the evidence at the inquiry, could have affected the outcome of the appeal. The addition of a single dwelling, subject to a personal condition limiting its occupation to the second respondent and his family, could not have made any material difference to the five-year housing supply. Given the extraordinary strength of the considerations weighing in favour of planning permission, it was inconceivable that the inspector’s decision might have been different if he had dealt with the housing land supply issue correctly.
(3) The judge had erred so far as he had taken into account, as a consideration relevant to the exercise of his discretion, the possibility of the inspector’s flawed legal analysis being regarded as a precedent which might be used in the future to cast doubt on the efficacy of the first respondents’ core strategy. The judge’s own careful discussion and cogent conclusions on that issue were such as to prevent any future reliance on the inspector’s analysis in support of an application for planning permission. Accordingly, in the extremely unusual circumstances of the case, the judge had erred in the exercise of his discretion in such a way as to justify setting his decision aside. Rather than remitting the case to the judge, it was appropriate for the appeal court to exercise its own discretion to uphold the inspector’s decision to grant planning permission: Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306; [1988] 3 PLR 25 applied.
Stephen Whale (instructed by the Government Legal Department) appeared for the appellant; the respondents did not appear and were not represented.
Sally Dobson, barrister