Lee, R (on the application of) v First Secretary of State

In a planning challenge, the weight given to an emerging development-plan policy is a matter of judgment for the decision-maker, provided the principal controversial considerations are addressed and the conclusion is rational. A planning inspector may deal shortly with a claimant’s personal need for a site where that need has been identified and distinguished from the wider need for sites and from personal hardship. But a request for temporary planning permission is a distinct issue. It must be addressed expressly, including any associated proportionality question under Article 8. An implication drawn from a general human-rights conclusion will not suffice where the decision-maker’s intention is unclear.

The claimant, a Romany gypsy, challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s dismissal of his appeal against refusal of permission for a family gypsy caravan site in the Green Belt.

The inspector recommended dismissal, and the Secretary of State adopted that recommendation. The challenge concerned the weight given to emerging policy H22, the treatment of the claimant’s personal need and hardship, and the failure to grant temporary permission either to allow an alternative site to be found or until the children completed their education.

1. Policy H22. The Secretary of State was entitled to attach considerable weight to the emerging policy because it had reached the deposit stage without objection, consistently with PPG1. The weight given to a policy is a matter of judgment. Although the claimant’s argument based on the policy’s failure to reflect national guidance should have been addressed expressly, the inspector had dealt with the underlying matters, including unmet need and the absence of identified sites. The conclusion was not Wednesbury unreasonable.

2. Any deficiency in reasoning would not have affected the result. The only adverse feature under policy H22 was the Green Belt location, and that constraint independently applied through national policy. There was therefore no realistic possibility that a different view of H22’s weight would have changed the decision.

3. Personal need. Hedges v The Secretary of State for the Environment (73 P&CR 534) was distinguishable. Unlike the inspector in Hedges, the inspector here had dealt fully with the general need for additional gypsy sites and had expressly acknowledged the claimant’s personal need for a settled site. The brief treatment was permissible, even though it was considered alongside the family’s educational needs and other personal circumstances.

4. Temporary permission and Article 8. The inspector had considered temporary permission until the children completed their education, but had not dealt with the separate request for time to find an alternative site. The Secretary of State’s decision was silent on conditions. Its general human-rights reasoning, including the statement that the public interest could be protected only by refusal, did not clearly address temporary permission or the proportionality of refusing it. The application therefore succeeded on the third ground. The Secretary of State’s decision was quashed and the matter required reconsideration of temporary permission and the proportionality issue relating to it. The defendant was ordered to pay costs of £8,830.56.

This was a first-instance judicial review. The judgment records that permission to appeal was refused to the Secretary of State.