South Bucks District Council & Anor v. Porter

This appeal concerned whether an inspector's decision to grant retrospective planning permission, subject to a personal condition, gave adequate reasons and whether the inspector had failed to have regard to the unlawfulness of long continued occupation of the land. The court summarised the established test for adequacy of reasons in planning decisions (drawing on authorities including Westminster, Save and Bolton) and held that reasons must be intelligible and adequate, addressing the principal important controversial issues so as to enable the parties to understand how those issues were resolved. Applying that test, the House concluded the inspector's reasons were clear and ample: he identified the development as inappropriate in the Green Belt, identified the "very special circumstances" relied on (the appellant's gypsy status, lack of an alternative site and serious ill‑health), and explained why those circumstances clearly outweighed the harm.

The court further held that the unlawful nature of occupation can be a material consideration in principle but that, on the facts, it was of little or no materiality to the inspector's decision and the inspector had in any event been aware of and had taken the planning history into account. Accordingly the Court of Appeal's quashing of the inspector's decision was overturned and the judge's order dismissing the council's statutory challenge was restored.

Background and facts:

• The appellant, Mrs Porter, a Romany gipsy, had lived on land in the Green Belt since 1985 in breach of planning control. She sought retrospective planning permission for retention of a residential mobile home at Willow Tree Farm. The local planning authority refused permission; an inspector allowed her appeal by letter dated 19 February 2002, imposing a personal condition and other conditions.
• The inspector treated the mobile home as inappropriate development in the Green Belt but found "very special circumstances" in the appellant's gypsy status, lack of an alternative site, and serious ill‑health which he considered clearly outweighed the harm.

Procedural posture:

• The council applied under section 288 of the Town and Country Planning Act 1990 to quash the inspector's decision, advancing (i) a vires challenge that the inspector failed to have regard to the unlawfulness of the appellant's occupation and (ii) a reasons challenge under rule 19(1)/section 288 that the inspector did not give adequate reasons. Judge Rich dismissed the council's application ([2002] EWHC 2136 (Admin)). The Court of Appeal allowed the council's appeal ([2003] EWCA Civ 687) and quashed the inspector's decision. The Secretary of State supported the appellant in the House.

Issues framed by the court:

1. Whether the inspector's reasons were adequate for the purpose of section 288 and rule 19(1).
2. Whether the inspector erred in law by failing to have regard to the unlawfulness of the appellant's occupation as a material consideration.

Court's reasoning and decision:

• The House reviewed authorities on the nature and sufficiency of reasons in planning decisions (including In re Poyser and Mills' Arbitration, Westminster, Save, Bolton and related cases) and summarised the test: reasons must be intelligible and adequate, addressing principal controversial issues, disclosing how any issue of law or fact was resolved, but need not deal with every material consideration. A reasons challenge succeeds only if the claimant shows substantial prejudice or a real doubt that the decision was within the decision‑maker's powers or free from legal error.
• Applying this approach, the House found the inspector's decision letter adequately explained the basis on which he concluded very special circumstances existed and that no legal or factual misdirection was shown. The Court of Appeal had imposed an impermissibly heightened requirement for fuller analysis.
• On the vires point, the House accepted in principle that unlawfulness of occupation can be a material consideration, but found that on the facts it was of little materiality to the inspector's determination and that the inspector was aware of and had taken the planning history into account. There was no failure to have regard to the point.

Relief sought: the council sought quashing of the inspector's decision under section 288; the House allowed the appellant's appeal and restored the judge's dismissal of the council's statutory application.

The appeal was allowed. The House held that the inspector's reasons were intelligible and adequate for the purposes of the statutory requirement and that, although unlawful occupation can be a material consideration in principle, on the facts it was of little or no materiality here and the inspector had the planning history before him. Accordingly the Court of Appeal was wrong to quash the inspector's decision; Judge Rich's dismissal of the council's s288 challenge was restored and costs awarded as set out in the opinion.

Inspector's decision allowing the appeal dated 19 February 2002. Judicial review: His Honour Judge Rich QC dismissed the council's section 288 application on 17 September 2002, [2002] EWHC 2136 (Admin). Court of Appeal allowed the council's appeal on 19 May 2003, [2003] EWCA Civ 687. House of Lords allowed the appellant's appeal on 1 July 2004, [2004] UKHL 33.