Clee v The First Secretary of State & Anor

National planning guidance requiring a decision-maker to give consideration to temporary planning permission does not require such permission to be granted. Where there is demonstrable unmet need for a gypsy or traveller site and no readily available alternative, the decision-maker must consider temporary permission in accordance with the guidance. Whether permission should then be granted remains a matter of planning judgment. An Inspector’s decision will not be unlawful merely because the relevant paragraphs are not expressly cited, provided the decision demonstrates that the issue was considered and the guidance was neither misunderstood nor misapplied. A planning decision may also lawfully balance the interference with residents’ home life against the public interest in protecting the Green Belt.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an Inspector’s decision upholding an enforcement notice, subject to extending the compliance period from one month to three months. The notice concerned the unauthorised use of land in the Green Belt as a residential caravan site occupied by gypsy families.

The claimant argued that the Inspector had failed to consider whether temporary planning permission should be granted under Circular 01/2006, had relied on superseded guidance, had failed to address the existing-use fallback position, and had acted unlawfully under Article 8. The central issue was whether the Inspector had made an error of law.

1. The appeal was dismissed. An appeal under section 289 of the Town and Country Planning Act 1990 lies only on a point of law.
2. Circular 01/2006 required the decision-maker to give consideration to temporary planning permission where there was demonstrable unmet need and no readily available alternative site. It did not require temporary permission to be granted. The ultimate decision remained a matter of planning judgment.
3. The Inspector had considered temporary permission. Although paragraph 37 of the decision letter did not expressly refer to paragraphs 45 and 46 of Circular 01/2006, the conclusion that the objections could not be overcome by temporary permission demonstrated that the issue had been addressed. The Inspector was entitled to conclude that the Green Belt objection was compelling and that the site was unsuitable even for a limited period.
4. The Inspector had arguably referred to superseded Circular 1/94 when assessing the weight of local plan policy HOU21. However, the policy was given only limited weight and the error had no material bearing on the decision. The overriding objection was the site’s location in the Green Belt.
5. The Inspector’s treatment of the existing planning use and the alleged fallback position disclosed no error of law. Nor was the decision irrational.
6. The Inspector had carried out the required Article 8 balancing exercise. The interference with the residents’ aspiration to make the site their home was balanced against the legitimate public interest in town and country planning, including Green Belt protection. No unlawful human-rights error was established.

The claimant appealed to the High Court under section 289 of the Town and Country Planning Act 1990 against the Inspector’s decision upholding the enforcement notice, subject to modification of the compliance period. Permission to appeal was granted by Beatson J on 4 September 2006. The High Court dismissed the appeal.