Green belt – Gypsy caravan sites – Secretary of State refusing permission – Revised planning circular issued after decision made – Claimants applying to quash decisions – Whether publication of circular material change of circumstances – Whether court having inherent jurisdiction to quash decision – Applications dismissed
The claimant gypsies had applied for planning permission to develop different plots of land in the metropolitan green belt as residential caravan sites. They appealed against the refusal of planning permission by the second defendant local planning authorities. In each case, an inspector appointed by the first defendant concluded that none of the appeals merited the grant of planning permission on a permanent basis but recommended that permission be granted for a temporary period of three years to enable the claimants to search for alternative sites.
The first defendant disagreed and concluded that no permission should be granted since the claimants’ need for the site did not amount to very special circumstances of sufficient weight to outweigh the harm that would be caused to a vulnerable area of the green belt so as to justify inappropriate development, even on a temporary basis.
Subsequent to that decision, revised Circular 01/2006: Planning for Gypsy and Caravan Sites was issued, which, inter alia, required, on appeal, that substantial weight be given to granting a temporary consent in circumstances such as the present. The claimants therefore applied, under section 288 of the Town and Country Planning Act 1990, to quash the first defendants’ decisions and the applications were heard together.
The claimants argued, inter alia, that the court should quash the decisions on the basis that change of circumstances had arisen after the new circular had been issued, which the first defendant ought to have taken into account. They contended that the court, at the time of review, had an inherent jurisdiction to look afresh at the question of whether the refusal of permission interfered with the claimants’ human rights under the European Convention on Human Rights.
Held: The applications were dismissed.
The planning legislation was a self-contained code under which the court had a limited power to quash a decision that could be exercised only by reference to section 288(5)(b) of the 1990 Act, where the court was satisfied that the decision was not within the powers of the Act and/or the claimants’ interests had been substantially prejudiced by a failure to comply with a relevant requirement.
Under the 1990 Act, the first defendant was required to determine the claimants’ planning appeals having regard to all material considerations. However, the court had no inherent jurisdiction to enlarge the statutory powers of review conferred by section 288 to enable it to quash an otherwise valid planning decision on the ground that it might have been affected by a statement of policy published after that decision. There could be no error of law in not having regard to a circular that had not existed at the time the decision was made. Moreover, the first defendant could not be criticised for having given little weight to the draft policy, which was still subject to change, and no lacuna in the law infringed the claimants’ human rights: R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 PLR 76 and South Bucks District Council v Smith [2006] EWHC 281 (QB); [2006] JPL 1519 applied.
Alan Masters (instructed by Bramwell Browne & Odedra, of Chesham) appeared for the claimant in the first case; Michael Rudd (instructed by Bramwell Browne & Odedra, of Chesham) appeared for the claimant in the second case; Timothy Mould QC (instructed by the Treasury Solicitor) appeared for the first defendant.
Eileen O’Grady, barrister
