Barnsley Metropolitan Borough Council v Secretary of State for Communities and Local Government & Anor

In a planning appeal involving inappropriate development in the Green Belt, an inspector is not required to consider a temporary permission as a separate fall-back option where the evidence does not establish a reasonable expectation that suitable sites will become available at the end of the proposed period. A suggested condition may nevertheless be sufficient to put the issue before the inspector.

A decision letter must be read as a whole. An inspector may rely on matters apparent from a site inspection and professional expertise where those matters could reasonably have been anticipated by the parties. A failure to address every point separately will not invalidate the decision unless it causes substantial prejudice.

Barnsley Metropolitan Borough Council appealed under section 288 of the Town and Country Planning Act 1990 against the Secretary of State’s decision allowing Richard Smith’s section 78 appeal against refusal of permission.

The proposed development was a permanent gypsy and traveller site in the Green Belt. The inspector found very special circumstances, including severe flooding at the family’s existing site, unmet accommodation need and the family’s personal circumstances. Barnsley argued that the inspector had failed to consider a five-year temporary permission and had relied on matters concerning the existing site without giving the Council a fair opportunity to address them.

1. Appeal dismissed. The inspector’s decision was lawful and adequately reasoned.
2. Under the Town and Country Planning (Hearings Procedure) (England) Rules 2000, the inspector had to identify the main issues and give the parties a fair opportunity to address matters which they could not reasonably have anticipated. That requirement did not oblige the inspector to examine every possible formulation of the parties’ cases.
3. The Council had included a five-year temporary permission in its suggested conditions and had referred to the circumstances supporting it. The inspector also considered the relevant guidance and the Council’s limited progress towards providing sites. His findings that the site allocation document was at an early stage, that existing planning was inadequate and that adoption by 2012 appeared optimistic provided ample material for concluding that there was no reasonable expectation of suitable sites being available after five years, or any other specified period. He was not required to speculate about a longer period.
4. Even if the temporary condition had not been expressly considered, that omission would not automatically justify quashing the decision: the court had to consider whether the omission was material and whether substantial prejudice resulted, applying the approach in Ayres v Secretary of State for the Environment [2002] EWHC Admin 295.
5. The inspector was entitled to take account of the visual and Green Belt effects of the existing site observed during his site visit. Those matters were reasonably foreseeable, particularly because the proposal was justified by the family’s wish to leave that site. The Council had an opportunity to address the relevant issues, and the matters in question were only additional factors. The critical consideration remained the family’s personal circumstances.
6. The decision letter had to be read fairly and as a whole. It identified the main issues, explained the balance reached and complied with the reasons requirement described in South Buckinghamshire DC v Porter (No. 2) [2004] 1 WLR 1953.

• Secretary of State for Communities and Local Government: allowed Richard Smith’s appeal under section 78 of the Town and Country Planning Act 1990 and granted planning permission subject to conditions.
• High Court (Administrative Court): dismissed Barnsley Metropolitan Borough Council’s section 288 appeal and declined to quash the inspector’s decision.