Chichester District Council v First Secretary of State & Ors

A planning decision must identify clearly whether development conflicts with a development plan policy. The existence of material considerations may justify granting permission despite a breach, but cannot convert the breach into compliance. Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms does not impose a duty on a local planning authority to exercise its planning powers to provide an adequate number of gypsy sites. An inspector who treats it as imposing such a duty adopts an unlawful approach. Material uncertainty about the factors relied upon for a particular appellant may also invalidate the decision.

The claimant local planning authority challenged an inspector’s decision under sections 78 and 174 of the Town and Country Planning Act 1990. The inspector had quashed enforcement notices and granted planning permission for a private gypsy site comprising four plots near West Ashling.

The challenge concerned the treatment of countryside policies, the assessment of need and personal circumstances, and the application of Article 8. The central issue was whether the inspector had materially erred in law or reached an inadequately reasoned conclusion.

1. Development plan policy. The site was in the countryside and outside the relevant built-up area boundaries. The development therefore breached Structure Plan Policy C1 because it fell outside the limited exceptions stated in that policy. The inspector erred by treating the development as substantially complying with the policy or as involving merely a technical breach. The correct approach was to identify the breach and then consider whether material considerations justified departing from the policy.
2. PPG7 and Policy RE22. The inspector was entitled to assess the need for gypsy sites, the rural setting, visual impact and other considerations under the criteria-based policy. Although he did not refer expressly to paragraph 3.21 of PPG7, his reasoning addressed the need for justification for development in open countryside by weighing the countryside objective against Circular 1/94 and the recognised need for gypsy accommodation.
3. Mr Eames. The inspector’s reasoning was materially uncertain. It was unclear whether he gave Mr Eames the benefit of the general need identified for Chichester District, despite finding no cogent personal circumstances and treating West Sussex, rather than Chichester District, as the relevant area. The decision concerning Mr Eames was therefore open to review.
4. Article 8. Chapman v United Kingdom established the relevant limit: Article 8 did not require the United Kingdom to provide an adequate number of gypsy sites. The inspector nevertheless treated Article 8 as imposing a duty on the Council to use its planning powers to help achieve that result. Article 8 imposed no such obligation. That error was fundamental because the inspector had given the human rights assessment considerable weight.
5. The court declined to uphold the decision on the basis that the inspector would inevitably have reached the same result. The claim was allowed, the planning permissions were quashed, and the matter was remitted to the first defendant for reconsideration. The Secretary of State was ordered to pay the Council’s agreed costs of £14,018.

The inspector’s decision letter dated 14 January 2003 granted planning permission and quashed enforcement notices. The High Court allowed the judicial review claim, quashed the planning permissions and remitted the matter to the first defendant for reconsideration. Permission to appeal was refused by the High Court.