Murphy v Secretary of State for Communities & Local Government & Anor

In planning appeals, a decision-maker may take account of a proposed change in planning policy, including the abolition of regional strategies or withdrawal of guidance, provided the consideration is material and its weight is a matter of planning judgment.

A reference back to parties is required under the inquiry rules only where the Secretary of State differs from the inspector because of new evidence or a new matter of fact within the rules. Natural justice separately requires consideration of whether failure to refer back was Wednesbury unreasonable.

Reasons need address the principal controversial issues but need not explain every nuance of the balancing exercise. Inappropriate Green Belt development requires very special circumstances clearly to outweigh the combined harm.

Two judicial review claims concerned recovered planning appeals involving gypsy and traveller sites in the Green Belt. Kathleen Murphy challenged the Secretary of State’s dismissal of an appeal concerning permanent permission and an enforcement notice relating to a site in Buckinghamshire. Hannah Doran challenged the grant of only temporary permission for a site in Essex.

Both appeals were determined after the Secretary of State’s purported revocation of regional spatial strategies had been quashed in Cala Homes (South) Ltd v Secretary of State for Communities & Local Government [2010] EWHC 2866 (Admin). The Secretary of State nevertheless took account of the proposed abolition of the strategies and his intention to withdraw Circular 01/2006, giving them reduced weight. The central issues were procedural fairness, adequacy of reasons, the relevance of unmet need and PPS3, and, in Mrs Doran’s case, prematurity and the emerging allocations document.

1. Procedure. The claims under section 288 of the Town and Country Planning Act 1990 were dismissed. In Ms Murphy’s case permission to appeal under section 289 was granted, but the appeal was dismissed. The Secretary of State had not breached the inquiry rules by failing to refer the matters back. In Ms Murphy’s case he had not disagreed with the inspector’s recommendation. In Mrs Doran’s case the disagreement concerned prematurity and the progress of the allocations document, rather than the changed policy position.
2. Natural justice. The applicable question was whether failure to refer back was Wednesbury unreasonable, applying Rea v Minister of Transport (1984) 48 P & C R 239. Neither claimant identified representations which could realistically have affected the outcome. The Secretary of State was therefore entitled to decide without reopening the inquiries.
3. Planning policy and reasons. Following Cala Homes (South) Ltd v Secretary of State for Communities & Local Government [2011] EWCA Civ 639, the Secretary of State could treat the proposed abolition of regional strategies and withdrawal of Circular 01/2006 as material considerations. Their weight was for him. The draft Policy H7 had not become part of the development plan and supplied no reliable indicator of current unmet need, although need in the wider area was accepted and given weight.
4. PPS3 and balancing. Paragraph 71 of PPS3 concerned the supply of conventional housing and did not require a five-year supply of gypsy and traveller pitches. The Secretary of State’s reasons adequately explained why the relevant positive considerations did not clearly outweigh the substantial Green Belt and AONB harm. The reasons complied with the approach in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.
5. Mrs Doran’s appeal. Prematurity was a matter of planning judgment and policy. The Secretary of State was entitled to prefer determination through the emerging Allocations DPD and to grant a temporary permission while allowing time for permanent sites to be identified. His reasons were intelligible and adequate.
6. Section 289 standing. The court expressed no concluded view on whether Ms Murphy was a person having an interest in the land for section 289 purposes, but granted permission to appeal in the circumstances.

First-instance judicial review and statutory appeal proceedings. No prior appellate decision in the present litigation was stated.