Casey, R (on the application of) v The First Secretary of State & Anor

In a planning challenge under Town and Country Planning Act 1990, an inspector may resolve a disputed noise issue by using ordinary experience and observations made during a site visit, where the issue was fairly raised at the inquiry and the parties had an opportunity to address it. Expert evidence is not required for an assessment within ordinary common sense, such as the effect of barking dogs on residential amenity. A policy document need not be cited in detail where it would add no material assistance. A reviewing court will not quash a decision for an alleged error that could not have affected the outcome.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash the First Secretary of State’s decision dismissing his section 78 appeal. The appeal concerned refusal of planning permission for a private gypsy caravan site adjoining commercial dog kennels. The claimant challenged the inspector’s treatment of noise, the absence of expert evidence and detailed reference to PPG24, and alleged procedural unfairness arising from the site inspection. A subsidiary challenge concerned the treatment of sustainability under PPG13. The central questions were whether the inspector had fairly and rationally assessed the site’s suitability for residential occupation and whether any error could have affected the decision.

1. The application was dismissed. The claimant was ordered to pay the First Secretary of State’s costs, subject to the usual legal aid order.

2. The inspector was entitled to treat the proximity of the kennels as a significant issue. The issue had been raised by interested parties at the inquiry, and the claimant had responded by challenging the evidence of noise, the absence of a noise survey and expert evidence, and the absence of analysis under PPG24. The fact that the local planning authority had not raised the issue did not determine whether the inspector could consider it.

3. The inspector could use his ears at the site visit, just as he could use his eyes to assess visual impact. Listening to the barking dogs did not amount to receiving new evidence or acting as his own expert. The likely effect of intermittent and irregular barking on residential amenity was a matter of ordinary common sense which the inspector could assess without expert evidence. PPG24 was of limited assistance because it contained no recognised threshold for barking dogs, although its general principle concerning noise-sensitive development was understood.

4. The inspector’s conclusion about the likely need for substantial acoustic fencing was also a common-sense assessment, not expert evidence. No unfairness arose because the issue had been fairly raised and answered before the site visit.

5. The sustainability challenge failed. Under Seddon Properties Limited v the Secretary of State for the Environment (1981) 42 P & CR 26, an inspector who has dealt with a point is not required to repeat it in the balancing conclusion. In any event, the sustainability point could not justify quashing the decision.

6. Any possible error concerning the kennels could not have affected the result. The balance had already fallen against permission because of substantial Green Belt harm. The harm to the character and appearance of the area and the site’s unsuitability for residential occupation strengthened that conclusion. The discretion under section 288(5)(b) therefore provided a further reason not to quash the decision.

The claimant’s section 78 planning appeal had been dismissed by the First Secretary of State in a decision letter dated 30 June 2005, following an inspector’s inquiry. The present application under section 288 of the Town and Country Planning Act 1990 challenged that decision. The Administrative Court dismissed the application.