Smith v Secretary Of State For Environment, Transport & Regions & Anor

A development plan may comply with national guidance for gypsy sites by setting clear criteria for suitable locations. It need not allocate particular geographical sites. An alleged failure to make a current quantitative assessment of accommodation needs is principally an issue of need in the planning merits, especially because such assessments cannot remain fully up to date between plan reviews. On a second appeal, permission requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case.

The applicant, a gypsy, challenged an enforcement notice concerning the use of land as a residential caravan site. The planning inspector dismissed his appeal under grounds (a), (f) and (g) of section 174(2) of the Town and Country Planning Act 1990. The inspector treated the Green Belt policy, the site's landscape impact, need for gypsy accommodation and the applicant's personal and Convention rights as material considerations.

Sullivan J dismissed the applicant's appeal on a point of law under section 289 of the Act. The renewed application to the Court of Appeal concerned whether the local plan complied with paragraph 12 of Circular 1/94 and whether the inspector had failed to take any deficiency into account. The Court also had to apply the second-appeal permission threshold.

1. Permission refused. The proposed appeal was a second appeal within section 55(1) of the Access to Justice Act 1999. Following Clark v Perks, permission could be granted only if the case raised an important point of principle or practice or there was another compelling reason for a full hearing. Neither condition was satisfied.
2. Paragraph 12 of Circular 1/94 did not require a development plan to identify particular geographical areas where gypsy sites might be located. A plan could comply by setting clear and realistic criteria for suitable locations. Policies H18 and H19 adopted a criteria-based approach and were not thereby inconsistent with the guidance.
3. The requirement for a quantitative assessment of accommodation needs was directed to issues of need. Such assessments would inevitably become historic as the supply of and demand for sites changed. The inspector was therefore entitled to treat the criticism that the assessment was out of date as part of the case on need.
4. The inspector had not been asked at the inquiry to find that the development plan breached Circular 1/94. He was entitled to address the argument as one concerning need. The proposed legal challenge was consequently bound to fail.
5. Lord Justice Peter Gibson agreed entirely with Lord Justice Keene. The renewed application was refused, with detailed assessment of the applicant's costs.

• Court of Appeal (Civil Division): renewed application for permission refused.
• Administrative Court, Queen's Bench Division: Sullivan J dismissed the appeal under section 289 of the Town and Country Planning Act 1990.
• Planning appeal: the inspector dismissed the appeal against the enforcement notice under grounds (a), (f) and (g) of section 174(2) of the Act.