Bowers, R (on the application of) v First Secretary of State & Anor

An inspector determining a planning appeal must address the case and evidence presented by the parties. The inspector need not investigate unadvanced points or search for evidence that the parties have not supplied. Where matters potentially engaging Article 8 are raised, the inspector must conduct the necessary balancing exercise, but the required detail depends on the material before the inspector. In a Green Belt case, the claimant bears the onus of establishing very special circumstances sufficient to outweigh the harm caused by inappropriate development. A claimant cannot challenge the decision by advancing on judicial review a merits case that was not put before the inspector.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s refusal of planning permission for permanent living quarters and storage facilities for travelling showpeople. The site was in the Metropolitan Green Belt and a Landscape Improvement Area.

The inspector accepted that the proposal was inappropriate Green Belt development and found no very special circumstances in the claimant’s health, her need for healthcare, or her wish to remain near her granddaughter’s school. The claimant argued that the inspector had assumed alternative accommodation and facilities would be available, failed to investigate that issue, and failed to assess her personal circumstances cumulatively under Article 8.

1. Application dismissed. The inspector correctly identified the material issues and concluded that the proposed development was inappropriate in the Green Belt. The claimant did not challenge the findings concerning harm to the Green Belt, conflict with planning policy, or harm to the Landscape Improvement Area.
2. An inspector determining an appeal is required to consider the case advanced by the parties. The inspector is not required to investigate whether there are new points or evidence which the parties have not put forward. An appellant must put forward the evidence necessary to establish very special circumstances. The claimant had not asserted, still less demonstrated, that no alternative site or healthcare provision was available.
3. The inspector was entitled initially to consider the claimant’s health and her granddaughter’s education separately for clarity. He then considered both matters in reaching the conclusion that they did not amount to very special circumstances sufficient to outweigh the harm to the Green Belt. The decision therefore contained the required balancing exercise where Article 8 considerations had been raised, even though Article 8 had not been expressly cited.
4. The court distinguished R v Islington London Borough Council ex p Thomas [1997] 30 H.L.R. 111. That case concerned a statutory duty imposed on housing authorities to make necessary enquiries at first instance. It did not impose an equivalent investigative duty on a planning inspector deciding an appeal.
5. The claimant’s attempt to rely on material from an earlier council report and an earlier inspector’s decision was impermissible. Those materials were not relied upon in the grounds of appeal, and the claimant had not challenged the council’s later written statement. Judicial review could not be used as a court of appeal on the planning merits or to reverse the burden of establishing very special circumstances.
6. The application was dismissed, with costs subject to assessment under the Community Legal Funding Regulations. Time for appealing or seeking permission to appeal was extended to 28 days from the judgment date.

The judgment concerns a first-instance application under section 288 of the Town and Country Planning Act 1990 to challenge an inspector’s planning decision. The application was dismissed. Time for appealing or seeking permission to appeal was extended to 28 days.