O'Connor v Secretary of State for Communities and Local Government & Anor

In a planning challenge, an inspector’s failure to state that substantial weight was given to an accepted unmet need for gypsy and traveller sites may make the challenge arguable where future site availability is reasonably expected. A related contention is also arguable where the inspector may have misunderstood policy governing temporary permission by treating the absence of adequate conditions for a permanent permission as decisive. The Court of Appeal may grant an application for such grounds to be pursued even where it has substantial doubts about one ground’s sustainability, if the issues are linked. A short delay may be excused where caused by awaiting a legal-aid decision.

The appellant, an Irish gypsy, sought to use land as a private gypsy and traveller site. An inspector had determined the planning appeal, giving substantial weight to the harm arising from the proposal’s impact on the green belt while identifying several factors favouring it.

The appellant brought an application under section 288 of the Town and Country Planning Act. The matter came to the Court of Appeal from a decision of John Howell QC, sitting as Deputy High Court Judge in the Administrative Court. The central issues were whether the inspector arguably failed to give substantial weight to unmet need under paragraph 46 of Circular 01/2006, and whether he arguably misunderstood paragraph 109 of Circular 195 concerning temporary planning permission.

Application granted.

1. The appellant’s application was nine days late. The delay occurred while the appellant was awaiting confirmation of whether legal aid would be available. In the circumstances, the Court extended time.
2. The first ground was arguable. The facts were said to establish an unmet need for gypsy and traveller sites and a reasonable expectation that further sites would become available. Paragraph 46 of Circular 01/2006 required substantial weight to be given to the unmet need. The inspector had identified the need among the factors favouring the proposal, but had nowhere indicated that he had given it substantial weight. That omission arguably indicated a failure to understand or apply the relevant planning framework.
3. The second ground concerned paragraph 109 of Circular 195. It was arguable that the inspector had proceeded on the false basis that, if conditions could not adequately address the amenity damage caused by a permanent permission, a temporary permission could not be granted. Lord Justice Elias expressed substantially greater doubts about the sustainability of this ground, for the reasons given by the lower court, but allowed it to be pursued because it was linked to the alternative ground.
4. The application was granted and half a day was allowed.

1. High Court of Justice, Queen’s Bench Division, Administrative Court: the matter was considered by John Howell QC sitting as Deputy High Court Judge. The citation and precise order are not stated in the judgment.
2. Court of Appeal (Civil Division): time for the nine-day delay was extended and the application was granted, allowing the proposed grounds to be pursued.