Smarden Parish Council v Secretary of State for Communities & Local Government & Anor

On a challenge under Town and Country Planning Act 1990, the court reviews legality, not the planning merits. An inspector need not refer expressly to every development-plan policy if the decision accords with the plan read as a whole and addresses the substance of the relevant planning issue. The availability of alternative sites is a material consideration in the overall planning balance. There is no strict burden on an applicant to identify and exhaust every possible alternative, and the weight given to the evidence is a matter of planning judgment. Earlier inspector decisions are material considerations but do not bind a later inspector, who must consider the matter for himself. A decision letter must be read as a whole; an isolated inaccurate formulation will not establish an error of law if the reasoning overall is legally sound.

Smarden Parish Council sought to quash, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision allowing John Lawson’s Circus to use land in the Low Weald Special Landscape Area as travelling showpeople’s winter quarters.

Earlier appeals concerning the same site had been dismissed because of landscape harm and uncertainty about alternative sites. The 2009 inspector accepted substantial harm to the countryside but found a pressing need, no reasonably available alternative site, and little prospect of the plan-led system meeting that need promptly. He therefore allowed the appeal, subject to conditions, and considered refusal disproportionate under Article 8. The issues were whether the inspector had enlarged the permission, omitted relevant policies, misapplied the landscape guidance, adopted an erroneous approach to alternative sites, and acted inconsistently or with predetermination.

1. Application dismissed. The inspector had not unlawfully enlarged the permission. “Winter quarters” denoted a permanent base primarily occupied in winter, while limited summer occupation by family members could reasonably be permitted in light of Circular 04/2007 and the evidence.
2. The inspector was not required to refer expressly to every development-plan policy. The relevant question was conformity with the plan as a whole. Policy CS1 substantially covered the matters raised by policy GP12.
3. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the development plan was determinative unless material considerations indicated otherwise. Circular 04/2007 was a material consideration, and the inspector’s balancing exercise was lawful.
4. There was no burden of proof requiring the applicant to prove that every possible alternative site had been investigated or exhausted. Alternative sites were a material consideration, and their existence, suitability and availability, together with the weight to be given to the evidence, were matters of planning judgment.
5. The earlier decisions were important material considerations but were not binding. The 2009 inspector was entitled to rely on their findings while updating the position and reaching his own conclusion. Read as a whole, his decision did not impose an unlawful burden on the Council, amount to predetermination, or lack adequate reasons.
6. The Article 8 assessment was linked to the availability of alternative accommodation and did not alter the planning analysis. The inspector’s reasons were intelligible and adequate, and the application was dismissed.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The application challenging the inspector’s decision of 7 October 2009 was dismissed.