Thompson & Ors v First Secretary of State & Ors

On a challenge under Town and Country Planning Act 1990 section 288, the court’s role is confined to the statutory grounds of challenge. It has no inherent jurisdiction to reconsider the planning merits or conduct a fresh proportionality assessment based on material arising after the decision. A policy issued after the decision cannot make the earlier decision unlawful for failing to take it into account. Later policy may instead be considered in enforcement proceedings, an appeal against an enforcement notice, a fresh planning application, or an application for injunctive relief.

A decision-maker may lawfully disagree with an inspector on whether harm is sufficiently serious to justify temporary permission where that disagreement concerns planning judgment rather than disputed fact. Reasons are adequate where they identify the greater weight given to the harm and explain why temporary permission is unjustified.

These were two applications under section 288 of the Town and Country Planning Act 1990. The claimants challenged decisions dismissing their appeals under section 78 and refusing permanent or temporary permission for land used to station gypsy caravans in Bromley and Sevenoaks.

In each case the inspector recommended refusal of permanent permission but grant of temporary permission for three years. The Secretary of State refused both forms of permission. The claimants argued that the decisions should be quashed because Circular 1/2006 Planning for Gypsy and Traveller Caravan Sites, issued after the decisions, had not been considered, and because the reasons for rejecting temporary permission were inadequate.

1. The applications were dismissed. The court’s power arose solely under section 288(5)(b) of the Town and Country Planning Act 1990. The statutory planning code gave the court no inherent jurisdiction to reconsider proportionality or remit decisions merely because circumstances had changed.
2. The Secretary of State could not have erred in law by failing to consider Circular 1/2006 Planning for Gypsy and Traveller Caravan Sites, because it did not exist when the decisions were made. The consultation draft of the revised policy was properly given little weight because it was liable to change and differed materially from the final Circular.
3. There was no resulting gap in protection of the claimants’ Convention rights. Current policy could be considered in later enforcement decisions, appeals under section 174(2)(a), fresh planning applications, and applications for discretionary injunctive relief.
4. The Secretary of State had not disagreed with the inspector on facts concerning accessibility and sustainability. The difference was a planning judgment about whether the site was sufficiently accessible without a car.
5. The reasons for refusing temporary permission were adequate. In both cases the Secretary of State accepted the relevant personal, educational, accommodation and site-need considerations but gave greater weight to the substantial harm to the Green Belt. It was rational to conclude that the harm was sufficiently serious to rule out temporary as well as permanent permission.
6. The earlier decisions concerning Salt Box Hill and Waldens Farm did not require the same result. The harm caused by each development had to be assessed individually, so there was no material inconsistency.

Costs orders were made against the legally aided claimants on the usual basis, with enforcement requiring permission. There was no order for costs against the non-participating non-legally-aided appellants.