In Thurrock Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 200 Admin, the council under section 288 of the Town and Country Planning Act 1990 sought to quash the decision of an inspector allowing an appeal and granting permission for development at Manor View, Southend Road, Corringham, Essex, for the change of use of the site, for a temporary period of five years, to a four-pitch gypsy and traveller residential site.
The council argued that the inspector did not give enough weight to the harm that would be caused to the green belt, nor took into account the conflict with green belt purpose, and wrongly applied a test of “outweigh the harm to the green belt” rather than “clearly outweigh the harm to the green belt, and any other harm.”
The High Court dismissed the claim. The inspector had correctly directed herself as to the policy test and repeated that direction in the later stages of her decision letter. There was therefore no evidential basis for concluding that the inspector failed to apply the correct test in her decision letter. It is inherently unlikely that she would have done so having correctly stated the legal test. Also, the inspector was clearly aware of the relevance of encroachment leads to a loss of openness, as identified in her decision letter. Therefore, it was unrealistic to consider that the inspector would have failed to take it into account having correctly identified it and directed herself. Lastly, the High Court held that that very special circumstances were not in the balancing exercise which the inspector carried out.
However, looking at the decision letter as a whole, the High Court formed the view that there was no merit in this ground. The judge held that there was no evidence to support the view that the inspector made an error when she had clearly directed herself as to the correct test of “clearly outweigh”. In reaching this conclusion, the judge referred to MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph 46 where it was stated that: “… If, as occurred in this case, a tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms. All the more so where the effect of the failure to apply the direction is that the tribunal will be found to have done precisely the opposite of what it said it was going to do”.
Martha Grekos is a partner and head of planning at Irwin Mitchell
