Rooney, R (on the application of) v Secretary of State for Communities and Local Government

A challenge under Town and Country Planning Act 1990, section 288, is not a merits appeal. The court may intervene for irrationality, but an applicant faces a particularly high threshold where the decision involves expert planning judgment and site impressions.

An inspector may depart from an earlier decision in a broadly similar case. The inspector must recognise the importance of consistency and identify sufficient reasons for the departure. Material differences in Green Belt impact, character and appearance, and personal circumstances may justify different outcomes. A local authority’s failure to identify traveller sites is a material consideration, but does not by itself require the decision to be quashed.

The claimants sought to quash an inspector’s decision refusing planning permission for a residential caravan site at Willow Farm, Ottershaw, Surrey. The proposed development was in the Green Belt and involved several gypsy families.

The claim principally alleged inconsistency with the same inspector’s earlier decision granting personal planning permission for a site at Red Cottage, Virginia Water. A subsidiary issue was whether the inspector had adequately considered the local authority’s failure to identify suitable gypsy and traveller sites under ODPM Circular 01/2006.

1. Application dismissed. The inspector’s decision was not unlawful under Town and Country Planning Act 1990, section 288.
2. Following R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWCA High Court Admin 74, section 288 does not permit a review of planning merits. A Wednesbury challenge is possible, but the threshold is particularly demanding where an expert inspector makes planning judgments informed by an inspection of the site.
3. The consistency principle requires like cases to be decided alike where appropriate, but it does not prevent an inspector exercising independent judgment. As explained in North Wiltshire DC v SSE (1993) 65 P&CR 137, an inspector who departs from an earlier decision should recognise the importance of consistency and give reasons for the departure.
4. The inspector identified adequate material differences from Red Cottage. Willow Farm involved a significant loss of Green Belt openness, greater harm to the character and appearance of the area, and materially different personal circumstances. Those conclusions were open to him and were sufficiently explained. The court would not reopen the merits of those planning judgments.
5. Green Belt development was inappropriate and the resulting harm required substantial weight. The inspector nevertheless had to balance that harm and any other harm against the material considerations. He considered the unmet need for traveller sites and the absence of a realistic prospect of alternative sites for several years.
6. The local authority’s failure to progress site provision under ODPM Circular 01/2006 was relevant, but that failure alone did not require the decision to be quashed. The inspector had taken the unmet need and delayed provision into account.
7. The claimant was ordered to pay the defendant’s costs, summarily assessed at £4,976, subject to the stated legal-aid enforcement qualification. Permission to appeal was refused.

First-instance judicial review-style challenge under section 288 of the Town and Country Planning Act 1990. The application was dismissed and permission to appeal was refused.