Boswell v Secretary of State for Local Government & Anor

On an application for permission to appeal on a point of law from an enforcement decision, the court must identify an arguable error of law. It is not an opportunity to reargue factual matters or the weight given to competing planning considerations. In assessing whether very special circumstances justify inappropriate development in the green belt, an inspector may consider both regional need and local need. The fact that unauthorised occupants are already using a site is not, without more, evidence of unmet need, since that approach would be self-serving and could encourage unauthorised occupation. Temporary permission requires both unmet need with no site provision and a reasonable prospect of sites becoming available. Decision letters must be read as a whole.

The claimant sought permission under section 289 of the Town and Country Planning Act 1990 to appeal against an inspector’s dismissal of appeals by Mr Boswell and Mr Linfoot concerning enforcement notices issued by Chorley Borough Council. The notices related to two mobile homes and 14 caravans used for residential purposes on green-belt land. The claimant also sought temporary planning permission.

The proposed grounds challenged the inspector’s treatment of regional and local need, his finding that there was no current unmet need, his approach to the evidential weight of the existing occupation, and his refusal of temporary permission. The central issue was whether any ground disclosed an arguable error of law.

1. Permission refused. The claimant had to show an arguable error of law. There was no appeal on the facts or on the weight which the inspector gave to competing considerations.
2. The inspector correctly applied the test in Circular 01/06: whether the harm arising from inappropriate green-belt development, together with other harm, was clearly outweighed by other considerations so that very special circumstances existed. The inspector was entitled to consider local need against the background of regional need. His consideration of local unmet need was not legally erroneous.
3. The inspector’s conclusion that there was no unmet need was a factual assessment supported by detailed analysis of the GTAA, draft policy L6 and the available evidence. The reference in paragraph 30 of the decision letter to there being no evidence of unmet need was imperfectly phrased, but the decision had to be read as a whole. It was clear that the inspector had found no unmet need. The alleged inconsistency did not make the decision irrational.
4. The inspector was entitled to decide that the existing occupation of the site did not establish unmet need. Treating occupation as significant evidence of need would be self-serving and could encourage persons to occupy land unlawfully and then rely on that occupation.
5. For temporary permission, the relevant considerations were whether there was unmet need and no site provision, and whether there was a reasonable expectation that sites would become available. The inspector found no unmet need and no reasonable prospect that draft policy L6 or the required development plan document would provide sites within the relevant period. That reasoning could not be faulted.
6. The inspector had carefully considered the gypsy families’ health, education and accommodation needs, but was entitled to conclude that they did not amount to very special circumstances sufficient to justify the harmful green-belt occupation.

The application concerned permission to appeal under section 289 of the Town and Country Planning Act 1990 from an inspector’s decision dated 13 May 2010 dismissing appeals against enforcement notices. Permission to appeal was refused by the High Court.