Smith v First Secretary of State & Anor

In a challenge under Town and Country Planning Act 1990, an inspector may take account of residents’ fear of crime where continuing incidents and past experience provide an evidential basis for apprehension. Direct evidence linking particular proposed occupiers to crime is not essential. Unlawful establishment of a development is not normally material by itself, but its history may be material where it contributed to identified planning problems. Inspectors may depart from earlier decision-makers’ views if they consider those views and explain their different planning judgment. Landscape character, site concentration and neighbouring uses are generally matters of planning judgment.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing an appeal against refusal of permission for the retention of a gypsy caravan park comprising four family plots and access arrangements. The site had a history of unauthorised occupation, enforcement action and earlier planning appeals. The claimant challenged the decision on nine grounds, including reliance on fear of crime, effects on neighbouring use, the risk of renewed occupation, unlawfulness, local need, policy, personal permissions and landscaping. The central issue was whether the inspector had made an error of law, acted irrationally or failed adequately to give reasons.

1. The application was dismissed. The inspector’s decision disclosed no error of law, irrationality or inadequacy of reasoning.
2. Fear of crime was capable of being a material planning consideration. On the evidence of continuing police-related incidents and residents’ previous experience, the inspector was entitled to find that apprehension was not unjustified, even though no incident was linked to the proposed occupiers.
3. The inspector could assess compendiously the effect of adjoining uses on neighbouring residential amenity, including the loss of greyhound training. The concentration of other gypsy sites, potential competition for local work and possible conflict between communities were also material considerations, whether or not expressly listed in policy H011.
4. The possibility that permission for the southern field might facilitate renewed occupation of the northern field was properly considered. The site’s history and access arrangements provided a rational basis for apprehension affecting residential amenity.
5. Unauthorised development is not normally material merely because an application is retrospective. It may become material where the manner of establishment and occupation contributed to identified planning problems or undermined a plan-led policy.
6. The inspector’s conclusions on landscape character, flood risk, gypsy-site need and the practicality of temporary or personal permissions were matters of planning judgment. He was entitled to differ from earlier decision-makers after considering their views and explaining his reasons.