Change of use – Enforcement notice — Planning application – Claimants purchasing land in area of outstanding natural beauty – Council issuing enforcement notice to discontinue use – Planning inspector upholding notice – Inspector recommending temporary planning permission – Secretary of state refusing permission and upholding notice – Whether secretary of state having regard to immaterial consideration – Whether secretary of state erring in departing from inspector’s assessment without site visit – Whether secretary of state wrongly relying on different reason for refusing temporary planning permission – Appeal dismissed
The claimant brothers were Romany gypsies who owned land within an area of outstanding natural beauty on which they kept horses. In December 2009, the second defendant council issued an enforcement notice alleging that, without planning permission, there had been a change of use of the land to the stationing of two mobile homes and one caravan for the purpose of human habitation and the use of a stable block for ancillary residential purposes. The notice required the claimants to discontinue that use and to restore the land to its previous condition within one month.
The claimants appealed against that notice contending that planning permission ought to be granted pursuant to section 174(2)(a) of the Town and Country Planning Act 1990. A planning inspector rejected the claim for permanent planning permission but recommended that, in the absence of suitable pitches for gypsies and travellers in the area, the claimants should be granted temporary permission until alternative sites were likely to become available at the end of 2013.
The appeal was subsequently recovered for determination by the first defendant who disagreed with the recommendation of the inspector on the ground that the harm that would result from the grant of even temporary planning permission was unacceptable. Accordingly, he dismissed the appeal.
The claimants appealed to the High Court pursuant to section 289 of the 1990 contending that (i) the first defendant had had regard to his intention to withdraw and revoke the national planning guidance for gypsy and traveller sites in Circular 01/2006 which was an immaterial consideration; (ii) the first defendant had erroneously departed from the inspector’s assessment of harm without a site visit; and (iii) the first defendant had erred in giving a different reason for refusing temporary planning permission from that advanced by the second defendant without giving the claimants a chance to answer it.
Held: The appeal was dismissed.
(1) It was indisputable that a prospective change to planning policy was capable of being a material consideration. There was no reason why an intention to revoke a circular could not lead to reduced weight being give to it. It would be a contradiction in concept to say that a circular had to be withdrawn before less weight was given to it. For a decision maker to say simply that he was going to give less weight to a circular would not in itself explain his approach to the balancing exercise between the circular and other factors, because the reader would have no means of knowing which elements of the circular were being discounted. However, provided that the planning authority had regard to all material considerations, it was at liberty to give them whatever weight it thought fit or no weight at all. The fact that the law regarded something as a material consideration involved no view about the part, if any, which it should play in the decision-making process. Matters of planning judgment were within the exclusive province of the local planning authority or the secretary of state. If a decision maker had based his decision on particular assumptions, those assumptions had to be set out but there was no indication in the decision letter that that was the case here: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 PLR 72 and Smith v Secretary of State for Communities and Local Government [2012] PLSCS 65 applied; Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] 34 EG 68, Murphy v Secretary of State for Communities and Local Government [1012] PLSCS 98 and Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] PLSCS 30 considered.
(2) It could not to be said that, on uncontradicted evidence, it had been necessary for the first defendant to make a site visit before departing from the inspector’s assessment of harm. A statement that the impact of a development on the character and appearance of the relevant area and its tranquillity were matters that could only be appreciated on a site visit was a matter of opinion, not of fact. It was a point on which views could differ. Therefore it was open to the first defendant, as a matter of judgment, to decide whether or not it was necessary to visit the site or whether there was sufficient material in photographs identified by the inspector. The claimants had come nowhere near showing that the decision to determine the appeal without visiting the site was unreasonable or irrational: R v Secretary of State for the Environment, ex parte Gosport Borough Council [1992] JPL 476 considered.
(3) The first defendant had been entitled to rely on a different reason for rejecting the grant of temporary permission from that advanced by the second defendant. The Inspector had concluded, and the first defendant agreed, that the overall need for sites did not outweigh the permanent harm to the area. However, she concluded that the impact on the character and appearance of the area for a limited period was clearly outweighed by the need for sites generally until alternative sites became available to meet the unmet need. In those circumstances the whole question of the extent of the harm caused to the area, whether by a grant of permanent or temporary permission, was in play. The parties had made their respective submissions on those issues and the first defendant had to make his or her own planning judgment on them.
Timothy Jones (instructed by Community Law Partnership Solicitors) appeared for the claimants; James Maurici (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
