McCarthy & Anor v Secretary of State for Communities & Local Government & Anor

In planning decisions, the prospective creation of further unauthorised development may be a material consideration where it is likely to produce identifiable planning harm. The decision-maker may assess the consequences of a precedent, including effects on landscape, amenities, highways and services. The existence of alternative sites is not invariably a burden which every applicant must discharge. It becomes material where policy requires it, or where the proposal causes policy conflict and the applicant relies on the need for provision at the proposed site. Article 8 does not impose a rigid two-stage proportionality test on ordinary planning decisions. A proper balancing exercise between individual, neighbouring and community interests will ordinarily satisfy proportionality requirements.

Two groups of claimants challenged, under section 288 of the Town and Country Planning Act 1990, the Secretary of State’s dismissal of appeals concerning personal permissions for caravan plots at Victoria View, Smithy Fen. The decision-maker accepted that the claimants had gypsy status for planning purposes, but found serious harm to the open fenland countryside, conflict with Local Plan policy HG23, and a real risk that permission would encourage further development across Smithy Fen. He also rejected temporary permission, relying on the harm and uncertainty about alternative sites. The claimants alleged errors concerning precedent, temporary permission, alternative sites, individual consideration of the McCarthys’ case and Article 8 proportionality.

1. Precedent. The court rejected the argument that the prospect of unauthorised development could not be material. The relevance of precedent lies in the planning consequences likely to follow, not in whether the later development would be lawful. Where further development is likely and would harm landscape, amenities, highway safety or services, the decision-maker may take that prospect into account. The weight given to it is for the decision-maker, not the court. The Secretary of State had evidence supporting his conclusion that permission would attract further caravans and create harmful cumulative effects.
2. Temporary permission. Circular 11/95 did not prevent the Secretary of State from balancing the serious landscape harm against the possibility that alternative sites would become available during a temporary period. The court expressed concern that paragraph 109 of the Circular appeared too sweeping, but held that the Secretary of State had not adopted that approach. He had considered the harm, the prospects of alternative provision and the case for a three-year permission. His refusal was adequately reasoned.
3. Alternative sites. Secretary of State v Edwards was not a rule requiring every applicant to prove that no alternative site existed. Such proof may be required by policy, or where the proposal would otherwise cause harm or conflict with policy and the applicant relies on the need for provision at that site. The greater the harm or policy conflict, the greater the evidential burden. The Secretary of State was entitled to conclude that the general need for sites did not outweigh the countryside harm and that the claimants had not shown that relocation elsewhere was impossible.
4. Individual consideration. A joint inquiry and single decision letter were permissible. Common issues could be addressed together, provided discrete matters were also considered. The McCarthys’ health circumstances were considered adequately because their case had been advanced jointly with materially similar cases and did not establish an exceptional need to remain on their existing plots.
5. Article 8. The two-stage approach described in Samaroo v Secretary of State for the Home Department could not simply be transposed into a planning context involving competing private interests and wider community interests. Following Lough v First Secretary of State, a proper balancing exercise was sufficient. The Secretary of State balanced the environmental public interest against interference with home and family life and was entitled to conclude that refusal imposed no disproportionate burden. The challenges therefore failed.

Not stated in the judgment.