Smith v First Secretary of State & Anor

A planning decision may take account of fear and concern among neighbouring residents only where it is real, has a reasonable evidential basis, and relates to the planning use of the land. It cannot rest on unsupported assumptions about prospective occupiers. Snapshot counts of caravans do not establish demand for authorised sites. Policy objections based on movement between authorised and unauthorised sites require proper evidence and reasoning. A decision-maker should not rely on unexplained assertions of conflict between gypsy communities. Where material errors infect a planning determination, the appellant need only show that the same decision was not inevitable. The decision must be quashed and reconsidered if that conclusion cannot be reached.

This was an application for permission to appeal, with an appeal to follow, from Mr Justice Sullivan’s dismissal of a challenge under section 288 of the Town and Country Planning Act 1990. The challenge concerned an inspector’s refusal of planning permission for the continued use of Woodside Caravan Park as a gypsy caravan site.

The appellant alleged that the inspector had relied improperly on fear of crime, an asserted shift from authorised to unauthorised sites, and alleged competition for local work. The central issues were whether those matters involved legal errors and, if so, whether the errors were material despite the inspector’s other objections and his consideration of particular educational and medical needs.

Disposition. Lord Justice Buxton delivered the judgment of the court. Lord Justice Sedley and Mr Justice Rimer agreed. Permission was granted, the appeal was allowed, the inspector’s determination was quashed, and the matter was remitted to the Secretary of State for reconsideration.

1. Fear of crime. The court applied the guidance in West Midlands Probation Committee v SSE and Walsall MBC (1997) JPL 323. Fear and concern may be material to a planning judgment where they are real and have a reasonable basis, but the concern must relate to the use of the land in planning terms. It is insufficient that concern arises from the characteristics or behaviour of particular individuals. A caravan site is not inherently comparable with a polluting factory or bail hostel. Here, the recent incidents were sparse and could not reliably be attributed to the appeal site or the applicants. The inspector therefore needed to examine carefully whether the concern rested on unsupported assumptions about future gypsy occupiers.
2. Authorised and unauthorised sites. Snapshot counts of vehicles at particular dates did not show where caravans had come from, why they had moved, or the demand for authorised sites. Evidence such as vacancies on authorised sites could have addressed demand, but none was relied upon. The possibility that granting permission could undermine government policy on authorised sites was not excluded, but it required much fuller and more explanatory reasoning than the decision letter provided.
3. Competition for local work. The inspector should not have accepted an unexplained assertion that a further site would create conflict between gypsy communities as a reason for refusing to meet need. The evidence was written, the relevant witness had not been available for cross-examination, and the alleged conflict could have involved serious social hostility or physical violence. Its meaning and implications required much fuller examination.
4. Materiality and disposal. Applying the test in Simplex v Secretary of State for the Environment (1988) 57 P&CR 306, the appellant did not need to show that a different outcome was probable. It was sufficient to exclude the contention that the inspector necessarily would have reached the same decision without the errors. That could not be established. The inspector had given proper and sensitive weight to the serious educational and medical needs of disadvantaged children, and it would be wrong to assume that he would necessarily have reached the same result if significant adverse considerations were removed.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 859, permission was granted, the appeal was allowed, the inspector’s determination was quashed, and the matter was remitted to the Secretary of State.
2. High Court of Justice, Administrative Court: Mr Justice Sullivan dismissed the section 288 challenge to the planning inspector’s refusal of permission.