Searle & Anor v Secretary of State for Communities and Local Government & Anor

In planning decisions, the materiality of a consideration is a question of law, but the weight given to it is ordinarily a matter of planning judgment. A prospective change in planning policy may be a material consideration, even where the replacement policy has not yet been settled. A decision-maker need not quantify the weight given to each part of competing policies, provided the essential assumptions underlying the decision are stated and the reasons are intelligible. Whether a site visit is necessary, and whether development harms landscape character, are generally matters of planning judgment rather than pure fact. A recovered planning appeal may therefore be determined without a site visit where the decision-maker has sufficient documentary and photographic material. A party need not receive a further opportunity to address a reason which was already substantially in issue in the planning evidence.

The claimants, Romany Gypsies and owners of land in the South Downs National Park, appealed under section 289 of the Town and Country Planning Act 1990 against the Secretary of State’s decision upholding an enforcement notice concerning the stationing of mobile homes and a caravan for human habitation and residential use of a stable block.

An inspector recommended temporary planning permission because of the absence of suitable local sites. The Secretary of State rejected that recommendation, finding the harm to the National Park unacceptable even for a limited period. The claimants challenged the decision on the weight given to Circular 01/2006, the absence of a site visit, and the alleged reliance on a new reason for rejecting temporary permission.

1. The appeal was dismissed. The Secretary of State was entitled to treat the announced intention to revoke and replace Circular 01/2006 as a material consideration and to give the Circular less weight. The court followed the reasoning in Smith v Secretary of State for Communities and Local Government [2012] EWHC 963 (Admin). The replacement policy did not need to have been identified in detail, and the decision-maker was not required to explain precisely which elements of the Circular had been discounted.
2. The distinction between whether a matter is material and the weight it deserves was fundamental. Weight was a planning judgment reviewable only on ordinary public-law grounds, including irrationality. The descriptions “great weight”, “significant weight” and “substantial weight” were not required to be quantified. The decision-maker was required to state particular assumptions if the decision depended on them, but no such undisclosed assumptions appeared in the Decision Letter.
3. The Secretary of State was entitled to decide whether a site visit was necessary. The assertion that the impact could only be appreciated on a site visit was an opinion, not an uncontradicted fact. The Inspector’s report, photographs and other material enabled the Secretary of State to make his own planning judgment. The issue was reviewable only on Wednesbury grounds, which were not met.
4. The distinction between fact and planning opinion was supported by R v Secretary of State for the Environment, ex parte Gosport Borough Council [1992] JPL 476. Whether development was visible might be factual, but whether it was intrusive or materially harmful was principally evaluative.
5. The claimants had had a fair opportunity to address the effect of temporary permission. Their evidence dealt with limiting the duration of permission, and the Council’s case raised the continuing harm caused by temporary occupation. The Secretary of State was therefore entitled to make his own planning judgment without further representations.

The court also relied on the settled distinction in Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, and on the warning in Newsmith v SSETR [2001] EWHC Admin 74 against using judicial review to reopen planning merits.

1. Inspector: Recommended temporary planning permission until alternative sites were likely to become available.
2. Secretary of State: Recovered the appeals and upheld the enforcement notice, rejecting temporary permission because the harm to the National Park was unacceptable.
3. High Court (Administrative Court): Dismissed the section 289 appeal.