Green, R (on the application of) v First Secretary of State & Ors

On judicial review of a planning inspector’s decision, the court reviews legality, rationality, material considerations and adequacy of reasons. It does not reweigh the planning merits or subject the decision letter to contractual-style textual scrutiny.

Gypsy status is a question of fact and degree assessed at the date of the planning decision. A person may retain a nomadic habit of life while temporarily settled, provided that the habit has not been abandoned. Where planning permission is granted for caravans or mobile living accommodation, the decision-maker must address the legal status and nature of all material structures on the site. Failure to do so may amount to failure to consider a material consideration and may make the permission inconsistent with the development actually authorised.

The claimant challenged an inspector’s decision allowing appeals concerning enforcement notices and refusing planning permission for the stationing of three units of mobile living accommodation and ancillary storage at Moate Farm.

The inspector granted permission, subject to conditions, for the third defendant and his dependants. The claimant alleged errors concerning gypsy status, the definition of caravans, countryside and conservation policies, comparison with the Willett appeal, personal circumstances, alternative sites and Article 8 rights.

The central issue was whether the inspector had lawfully addressed the nature and statutory status of the structures on the site when determining gypsy status and granting permission for three units of mobile living accommodation.

Appeal allowed and inspector’s decision quashed. The decisive error concerned the vans and other structures on the site.

1. The court’s task was supervisory. It had to determine whether the inspector acted irrationally, took account of irrelevant matters, failed to consider material matters, complied with statutory requirements and gave clear and intelligible reasons on substantial issues. The court was not entitled to reweigh the planning merits. An inspector may attach such weight as she considers appropriate, subject to rationality.
2. Under Town and Country Planning Act 1990, sections 70 and 54A, the decision-maker had to have regard to the development plan and make the determination in accordance with it unless material considerations indicated otherwise. The inspector had undertaken the relevant planning balance adequately.
3. Following Wrexham County Borough Council v The National Assembly of Wales & Others [2003] EWCA Civ 835, gypsy status for planning purposes was a question of fact and degree at the date of the planning decision. Temporary non-travelling, including for illness or children’s education, did not necessarily end a nomadic habit of life. The inspector’s conclusion on this issue was legally open to her, subject to the separate issue concerning the accommodation.
4. The inspector considered the third defendant’s mobile home and treated a minor dimensional excess as de minimis. That reasoning might have been sustainable if the only issue concerned that home. However, the evidence raised a substantial question whether the other two units, including timber extensions and a structure connecting two units, were caravans or fixtures when considered as whole structures. That issue had a significant potential bearing on gypsy status and on whether the formal permission corresponded with the development on the land.
5. The inspector failed either to take that material consideration into account or to give reasons showing how she had dealt with it. Permission for three units falling within the statutory definition of a caravan could not be treated as adequately addressing structures whose legal status and mobility had not been determined.
6. The remaining grounds would have failed. The inspector rationally distinguished the Willett appeal, was entitled to consider the family’s special circumstances, properly considered the absence of alternative sites, and was not shown to have erred on the Article 8 issue in light of Lough v First Secretary of State [2004] 1 WLR 2557.

The decision was quashed. The First Secretary of State was ordered to pay the claimant’s costs, assessed at £12,000. Permission to appeal was granted.

The judgment reviewed an inspector’s decision dated 7 May 2004 allowing the relevant planning appeals in part and granting planning permission subject to conditions. The High Court allowed the statutory review, quashed the inspector’s decision, assessed costs at £12,000 and granted permission to appeal.