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

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the Development Plan is determinative unless material considerations indicate otherwise. No legal burden of proof rests on either party concerning alternative sites. The availability, suitability and affordability of alternatives are material considerations for the decision-maker to assess and weigh. An applicant need not prove that every alternative has been explored and exhausted, and a local authority need not identify an alternative before refusing permission. The weight given to these matters is a matter of planning judgment. Exceptional personal circumstances may justify permission despite conflict with the Development Plan.

South Cambridgeshire District Council applied under section 288 of the Town and Country Planning Act 1990 to challenge an inspector’s decision allowing the Browns’ appeal under section 78 and granting conditional personal planning permission for a gypsy site. The inspector accepted conflict with planning policy and harm to the rural character of the area, but considered that the family’s exceptional circumstances, their disabled daughter’s needs, unmet need for gypsy sites and lack of a suitable affordable alternative outweighed those matters.

Keith J dismissed the Council’s application on 18 September 2007. The Council appealed on the narrow question whether the Browns had to prove that no alternative sites were available or that their needs could not be met elsewhere. The Court of Appeal also considered an argument that the inspector’s reasons were inconsistent with an earlier Smithy Fen decision.

Appeal dismissed. Scott Baker LJ gave the leading judgment, with Sir Robin Auld and the President of the Family Division agreeing.

1. Section 38(6) of the Planning and Compulsory Purchase Act 2004 governs the issue. The Development Plan is determinative unless material considerations indicate otherwise. The planning authority or inspector must identify the material considerations and assign them such weight as is appropriate. That is a matter of planning judgment. There is no burden of proof on either the applicant or the authority.
2. The availability of alternative sites is a material consideration, but there is no absolute requirement for an applicant to prove that all possible alternatives have been investigated and exhausted. Evidence of a search, the area searched, the period involved and the existence of obvious alternatives may affect the overall balance. Equally, a local authority need not identify an alternative site before refusing permission.
3. The authorities relied on by the Council did not establish a general contrary rule. Rhodes v Minister of Housing and Local Government [1963] 1 ALL ER 300 concerned whether an alternative site emerging at an inquiry was material, not how its existence had to be proved. Trusthouse Forte Ltd v Secretary of State for the Environment (1986) 53 P CR & 293 and First Secretary of State v Simmons [2005] EWCA Civ 1295 were Green Belt cases. The passage in McCarthy v Secretary of State for Communities and Local Government [2006] EWCA (Admin) 3287, if intended as a general statement of law, was wrong and was not binding. Secretary of State v Edwards [1994] 1 PLR 62 (CA) did not impose an evidential test.
4. The inspector was entitled to treat the Browns’ exceptional personal circumstances, accommodation needs, their daughter’s compelling medical needs and the absence of a suitable affordable alternative as material considerations. Those considerations justified departure from the Development Plan despite the identified planning harm.
5. The challenge under section 288 of the Town and Country Planning Act 1990 disclosed no error of law. The inspector’s decision letter was full and careful, addressed the main issues, and could not be faulted for failing to adopt the Council’s proposed burden of proof or for inconsistency with the earlier Smithy Fen decision.

• Court of Appeal (Civil Division): dismissed the Council’s appeal against Keith J’s decision. [2008] EWCA Civ 1010.
• Administrative Court: Keith J dismissed the Council’s application under section 288 of the Town and Country Planning Act 1990 on 18 September 2007.
• Inspector: by decision letter dated 12 April 2006, allowed the Browns’ appeal under section 78 of the Town and Country Planning Act 1990 and granted conditional personal planning permission.