Blackburn v First Secretary of State

On applications under sections 288 and 289 of the Town and Country Planning Act 1990, the court reviews an inspector’s decision for an identifiable error of law, not on the planning merits. A planning judgment, including assessment of countryside policy, visual impact, flooding, affordable housing and Convention rights, is for the inspector unless legally flawed. A previous residential use of land may justify an enforcement notice even if that use ceased before the notice was served. Article 8 requires a balance between private interests and the wider public interest, including environmental protection.

The claimant occupied a caravan on agricultural land and applied for outline planning permission to build a dwelling. The local planning authority refused permission on countryside-policy and flood-risk grounds and served an enforcement notice alleging an unauthorised residential caravan-site use.

The inspector dismissed the claimant’s ground (c) appeal against the enforcement notice and his planning appeal. The claimant applied for permission to appeal under section 289 and sought to quash the planning decision under section 288 of the Town and Country Planning Act 1990. The central issue was whether the inspector had made an error of law.

1. The application for permission to appeal under section 289 and the application under section 288 of the Town and Country Planning Act 1990 were dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £4,500.
2. The inspector correctly concluded that the claimant’s occupation of the caravan as his home constituted a material change of use to residential use. The fact that the claimant had stopped living there before service of the enforcement notice did not prevent enforcement in respect of the earlier breach. The claimant had appealed only on ground (c), not ground (b), and the inspector was right to conclude that nothing turned on the suggested ground (b) argument.
3. The inspector adopted the correct planning approach. He identified the relevant countryside policies, considered whether the proposal breached the settlement boundary and harmed the countryside, and then weighed any countervailing factors, including affordable housing need and agricultural production.
4. The inspector’s assessment of visibility and visual impact on the site was a matter of planning judgment. It was not open to challenge in the Administrative Court merely because the claimant disagreed with it. The evidence of the claimant’s personal inability to afford a house did not establish a general need for affordable housing sufficient to justify the exceptional policy mechanism.
5. The inspector was entitled to conclude that flood-prevention interests favoured containment of development, even if detailed measures might protect an individual property. His treatment of flooding was not legally defective.
6. Article 8 applied to the planning appeal, not to the ground (c) enforcement appeal. The inspector properly balanced the claimant’s private and family life and home against the wider public interest, including environmental protection. The manner in which that balance was struck was pre-eminently a matter of planning judgment, and disclosed no error of law.
7. The court was not a general appellate court on the merits of the inspector’s decision. Neither application disclosed an identifiable error of law.

The judgment records that the section 289 application had previously been adjourned by Lightman LJ to be heard with the section 288 application. Both applications were dismissed by the Administrative Court.