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

Permission to appeal may be granted where a planning-law question is important, there may be a divergence of views, and the proposed appeal has a reasonable prospect of success. The practical effect of allowing the issue to proceed may also be relevant. Permission was granted on the narrow question whether an applicant for residential gypsy planning permission must prove that suitable alternative sites are unavailable when that matter is relied on as a material consideration. The court did not determine the merits of that question.

South Cambridgeshire District Council v Secretary of State for Communities & Local Government & Anor concerned an appeal from a decision of Keith J dated 18 September 2007. The judge had rejected the Council’s application under section 288(1) of the Town and Country Planning Act 1990 concerning an inspector’s planning decision.

The Court of Appeal granted permission to argue one point only: whether an applicant seeking residential gypsy use must establish that no suitable alternative sites are available, or that the need cannot be met elsewhere.

Lady Justice Hallett granted permission to appeal. The permission was confined to the question whether the inspector and Keith J were correct to conclude that planning policy or case law imposed no requirement on an applicant to prove the non-availability of suitable alternative sites.

1. The issue was of considerable importance to the Council. The Council had consistently proceeded on the basis that a developer who was effectively breaching the development plan bore the burden of proving that alternative sites were unavailable.
2. The proposed appeal had a reasonable prospect of success. The court was also persuaded that there might be a divergence of views on whether such a burden existed.
3. The court was satisfied that the issue should be considered by the full court. It took account of the assurance that allowing the appeal to proceed was likely to have virtually no effect on Mr and Mrs Brown, who wished to remain in place to care for their disabled daughter.

The Court of Appeal did not decide the underlying planning-law issue. The operative order was: application granted.

• High Court of Justice, Queen’s Bench Division: Keith J rejected the Council’s application under section 288(1) of the Town and Country Planning Act 1990 on 18 September 2007.
• Court of Appeal (Civil Division): Under [2008] EWCA Civ 239, Lady Justice Hallett granted permission to appeal on one issue only.