South Cambridgeshire District Council v First Secretary of State & Ors

A planning inspector must determine an application in accordance with the applicable development plan unless material considerations indicate otherwise. A draft policy that does not apply to the facts cannot replace the adopted plan as the basis for assessing a proposal. Personal circumstances may be material, but they must be weighed against the relevant development plan policies, not merely against an individual’s loss of a particular status. A decision is unlawful where the reasoning shows that the inspector applied an immaterial policy, failed to apply the relevant plan, or reached an irrational planning judgment. An important factual conclusion must also be supported by adequate reasons sufficient to explain the decision to the affected planning authority.

The local planning authority challenged an inspector’s decision allowing appeals concerning the use of land for a residential caravan site, associated drainage, accesses and hardstandings. The inspector had allowed a section 78 appeal and an enforcement notice appeal, quashed the enforcement notice and granted planning permission subject to conditions.

The authority brought an application under section 288 of the Town and Country Planning Act 1990 and an appeal under section 289. It argued that the inspector had applied an inapplicable draft gypsy-site policy, failed to apply the adopted development plan, taken immaterial considerations into account, and failed to give adequate reasons for rejecting the possibility that the occupants could use adjoining authorised pitches.

1. Both challenges succeeded. The inspector’s decision of 16 February 2004 was quashed. The section 289 matter was remitted to the Secretary of State for rehearing and redetermination.
2. Under sections 54A and 177(2) of the Town and Country Planning Act 1990, the inspector was required to apply the relevant adopted development plan, subject only to material considerations indicating otherwise. The draft policy HG29 was not part of the development plan when the decision was made and, on the inspector’s findings, did not apply to the circumstances of the case.
3. The inspector assessed the effect on rural character and appearance by reference to draft policy HG29 instead of the adopted policies imposing strict restraints on countryside development. That was an erroneous approach to the applicable policy framework.
4. The personal circumstances and gypsy status of all three occupants could be material considerations. However, they had to be weighed against the relevant development plan and policies. The inspector instead concluded that the circumstances of Mr and Mrs McCarthy outweighed their loss of gypsy status, without explaining how that conclusion bore on the planning decision or stating that the material considerations had been weighed against the plan.
5. In light of the mistaken treatment of HG29, the planning judgment was flawed. The inspector had taken an immaterial consideration into account and reached a decision that was accordingly perverse or irrational.
6. Mr O’Rourke’s occupation of the site did not make him an appellant or the applicant in the deemed application under section 177(5). The applicant in that application was the enforcement-notice appellant, Mr McCarthy. Nevertheless, Mr O’Rourke’s gypsy status could properly be considered as a material circumstance.
7. The inspector also failed to give adequate reasons for concluding that the needs of Mr and Mrs McCarthy could not easily be accommodated on adjoining authorised sites. That was an important issue and the inadequacy prejudiced the authority, applying the approach in South Bucks v Porter (2004) UKHL 33.

The proceedings were brought at first instance against the decision of the Secretary of State’s appointed planning inspector. The section 288 application resulted in the inspector’s decision being quashed. The section 289 appeal was remitted to the Secretary of State for rehearing and redetermination.