West Midlands Probation Committee v Secretary of State for the Environment & Anor

Under section 70(2) of the Town and Country Planning Act 1990, the effect of a development on neighbouring land may be a material planning consideration. A sustained pattern of disturbance or anti-social behaviour may qualify where it arises from the character of the land use, rather than from the identity of particular occupants. Justified fear and concern among neighbouring residents may therefore be relevant. The weight given to those effects, and to any need for the development, remains a matter of planning judgment. A planning inspector may consider site-specific need and relevant criteria in government guidance, subject to the ordinary limits of lawful planning judgment.

The appeal concerned refusal of planning permission for a two-storey extension to a bail and probation hostel. The Inspector found that the existing hostel was associated with repeated disturbances, police attendances, criminal or anti-social incidents and residents’ apprehension, and concluded that expansion would materially impair neighbouring living conditions.

The Committee argued that individual behaviour and fear were immaterial, that the Inspector had improperly investigated the need for additional hostel places, and that Home Office site-selection guidance was irrelevant. The central issues were whether those matters were material planning considerations and whether the Inspector was entitled to reject the particular site despite an asserted regional need.

Appeal dismissed with costs. Leave to appeal to the House of Lords was refused.

1. Section 70(2) of the Town and Country Planning Act 1990 requires regard to material considerations. The court adopted the principles identified in Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281 and Westminster Council v Great Portland Estates plc [1985] AC 661: the impact of a proposed development on the use of, and activities upon, neighbouring land may be material, and the use of that neighbouring land may be relevant.
2. The Inspector was entitled to treat the repeated incidents and necessary police responses as a pattern intimately connected with use as a bail and probation hostel. They were not merely isolated acts of particular residents. The resulting fear and concern affected the reasonable use of adjoining land. The distinction in East Barnet UDC v British Transport Commission [1962] 2 QB between land use and the identity of an occupier did not prevent consideration of an established pattern arising from the use itself. The comparisons with Finlay v Secretary of State for the Environment & Anor [1983] JPL 802 and Blum v The Secretary of State for the Environment & Anor [1987] JPL 278 supported that approach.
3. The court did not resolve the difference between Gateshead MBC v Secretary of State for the Environment [1994] 1 PLR 85 and Newport CBC v Secretary of State for Wales & Anor (transcript 18 June 1997) concerning objectively unjustified public fears, because the Inspector had found the fears in this case justified. The weight given to the effects of the activity and its proposed intensification was a matter of planning judgment, applying Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759.
4. The Inspector was entitled to investigate the asserted need for hostel accommodation. Even if a regional need existed, it was proper to ask whether this particular site justified expansion. The wider limits of inquiry into Home Office policy were left for a future case; the procedure followed here caused no legal error. The reasoning was consistent with the approach considered in Bushell v Secretary of State for the Environment [1981] AC 75.
5. The Home Office site-selection criteria could be adopted insofar as they reflected material planning considerations. Their application was within the range permitted by planning judgment and was not Wednesbury unreasonable. The reference to Circular 11/95 was inappropriate, but merely ancillary and harmless; Circular 5/94 did not determine the materiality issue.

• Court of Appeal (Civil Division) dismissed the appeal with costs and refused leave to appeal to the House of Lords.
• High Court, Queen’s Bench Division, Mr Robin Purchas QC sitting as Deputy High Court Judge, dismissed the application to quash the Secretary of State’s decision on 20 August 1996.