Brazil, R (on the application of) v Secretary of State for Communities & Local Government & Anor

An inspector is ordinarily required to determine the planning proposal advanced by the applicant. The inspector need not formulate and consider an alternative, smaller or differently structured application which the applicant has not made. An appellant is expected to tell the inspector everything relied upon. Although an inspector may sometimes need to raise an unadvanced issue at an informal hearing, particularly where an applicant is unrepresented, no general duty exists to explore every alternative proposal that might succeed.

The claimant challenged the Inspector’s decision upholding refusal of planning permission for a gypsy or traveller site. The original proposal concerned six pitches, following a reduction from nine. The claimant argued that the Inspector should have considered a different proposal involving two pitches for members of the family with special needs and carers. It was also argued that the Inspector should have raised that alternative herself at the informal hearing. The central issue was whether the Inspector had failed in her duty by not considering or suggesting an application that had not been advanced.

1. The appeal was refused. The Inspector had correctly addressed the proposal that was before her: six pitches. The hearing and the material before the Inspector did not establish that an application for two pitches had been made or that the family should be divided into smaller units.
2. The claimant’s evidence did not show that the alternative proposal had been advanced. The Council had proceeded throughout on the basis that the application was to be determined in its entirety. If a separate application had been intended, the Council would have needed details of the proposed occupants and caring arrangements.
3. The court relied on Dyson v Secretary of State for the Environment [1998] PLR 54 and the authorities discussed in Top Deck Holdings v Secretary of State for the Environment and Woking Borough Council [1991] JPL 961. An appellant is expected to tell the Inspector all that the appellant wishes to rely upon. An Inspector is not generally required to devise alternative conditions or proposals where none has been canvassed.
4. There may be circumstances in which an Inspector should raise an issue not expressly advanced, particularly where an applicant is unrepresented. That qualification did not apply here. Requiring Inspectors routinely to consider every smaller or alternative application that might succeed would impose an intolerable obligation and materially alter the nature of the planning inquiry.
5. The claimant’s costs were to be taxed and were not to be enforced without leave of the court.

The judgment states that it was an appeal from the Inspector’s decision dated 10 December 2007, which upheld refusal of planning permission. No separate lower-court citation is given.