South Cambridgeshire District Council v Secretary of State for Communities and Local Government & Anor

In a planning appeal, the availability of alternative sites is a material consideration, not ordinarily a separate legal burden requiring an applicant to prove that every possible alternative has been exhausted. The question is whether the evidence discloses suitable alternatives and how that evidence bears on the overall planning balance.

Previous appeal decisions may be material because consistency is important, but an inspector must exercise independent judgment. Departure is permissible where the cases are materially different, provided adequate reasons are given.

A procedural fairness error justifies quashing only where the statutory test of substantial prejudice is met. Natural justice is concerned with substantive fairness rather than technical defects.

Archie and Julie Brown, gypsies with a seriously disabled daughter requiring established medical, educational and family support, occupied land near Willingham without planning permission. The local planning authority issued enforcement and stop notices and failed to determine their subsequent application for permanent planning permission.

An inspector allowed the appeal against that failure and granted personal planning permission, giving substantial weight to the family’s exceptional circumstances and the limited availability of suitable and affordable alternatives. The Council challenged the decision under section 288(1) of the Town and Country Planning Act 1990, alleging procedural unfairness, errors concerning alternative sites, and inadequate reasons for departing from an earlier inquiry decision.

1. Application dismissed. The inspector’s decision was within her powers and was not invalidated by procedural unfairness, an erroneous approach to alternative sites, or inadequate reasons.
2. The inspector was entitled to refer to her experience of gypsy sites in neighbouring districts. That experience was used only as corroboration of evidence about site availability, not as an independent factual foundation. The Council knew that alternative-site availability was in issue and produced no evidence of substantial prejudice. Under sections 288(1)(a)(i), 288(1)(a)(ii) and 288(5)(b) of the Town and Country Planning Act 1990, a procedural defect must cause substantial prejudice before the decision can be quashed.
3. The site visit did not render the process unfair. The inspector repeatedly stopped additional evidence from being given and later offered the Council an opportunity to question Mrs Brown or recall its witness. That opportunity was not taken.
4. Section 38(6) of the Planning and Compulsory Purchase Act 2004 required a planning balance. The evidence concerning the existence or non-existence of suitable alternative sites was one material consideration within that balance. The cases relied upon by the Council concerned Green Belt policy, where the applicable policy placed a different emphasis on demonstrating need and very special circumstances. They did not establish a universal burden requiring an applicant to prove that all alternatives had been exhausted.
5. Previous appeal decisions can be material, since consistency matters, but an inspector must exercise independent judgment. The earlier Smithy Fen decision was materially distinguishable because the applicants’ circumstances and local ties differed substantially from those of the Brown family. The inspector therefore gave sufficient reasons for reaching a different conclusion.
6. The Council’s challenge to the weight given to evidence about sites at Chesterton Fen was a challenge to planning judgment. The inspector was entitled to rely on the available documentary evidence and to conclude that the sites were not immediately available to the Browns.

The Council was provisionally ordered to pay the Secretary of State’s costs. The question of the Browns’ costs and any application for permission to appeal was reserved for written submissions.