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

An inspector determining a gypsy-site planning appeal must identify and accurately apply the relevant development-plan policies. A failure to explain why a policy specifically permitting gypsy sites is not satisfied may create a genuine doubt about legal error and require the decision to be quashed.

Unlawful delay by a local authority in providing sites is not, by itself, a material consideration requiring permission. The relevant consideration is the resulting unmet accommodation need. A temporary permission may be granted where other factors justify it, even though permanent permission would be inappropriate; an inspector must not treat refusal of permanent permission as automatically determining the temporary-permission issue.

Applying policies designed to address racial disadvantage will generally satisfy the duty under section 71 of the Race Relations Act 1976, absent additional race-relations issues requiring separate consideration.

The claimants, gypsies with three children, challenged an inspector’s dismissal of their appeal against refusal of permission for a residential site in rural Somerset. An earlier temporary permission had expired. The inspector found serious harm to the rural character, recognised unmet need for gypsy accommodation and the family’s personal circumstances, but refused both permanent and temporary permission.

The challenge under section 288 of the Town and Country Planning Act 1990 raised issues concerning the interpretation of local plan policy HG 11, the statutory race-equality duty, the relevance of the council’s failure to provide sites, and the proper approach to temporary permission.

1. Appeal allowed. The inspector’s decision was quashed and the matter remitted for reconsideration. The first defendant was ordered to pay 80 per cent of the claimants’ costs, subject to detailed assessment of publicly funded costs.
2. Policy HG 11 created a specially important, permissive framework for gypsy sites. It did not require the development to cause no harm whatsoever to the character of the area. The inspector’s unexplained conclusion that criterion 1 was not satisfied, coupled with an inaccurate summary of the policy, created a genuine doubt that he had misunderstood its scope. Because compliance might materially affect the balancing exercise, the court could not uphold the decision on the assumption that the result would inevitably have been the same.
3. The inspector had substantially complied with section 71 of the Race Relations Act 1976. Express reference to the statutory duty was unnecessary where the inspector had considered the disadvantages faced by gypsies and applied Circular 01/2006, whose policies were directed to those problems. The same reasoning applied to the duty to promote good race relations, although additional evidence of special tensions might require separate consideration.
4. The council’s failure to implement national policy promptly was not independently a relevant factor. Its relevance lay in the resulting shortage of available sites and the consequent unmet need, which the inspector had taken into account. No legal error arose from declining to speculate how long the claimants would take to find another site.
5. Paragraph 109 of Circular 11/95 was unsatisfactorily drafted. An inspector must not assume that refusal of permanent permission necessarily requires refusal of temporary permission. Paragraphs 45 and 46 of Circular 01/2006 recognise that temporary development may be less harmful and require a separate balancing exercise. The inspector had carried out that exercise, so the temporary-permission grounds failed.

• Inspector: dismissed the claimants’ planning appeal on 5 March 2008.
• High Court (Administrative Court): allowed the section 288 appeal, quashed the inspector’s decision and remitted the matter for reconsideration.