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

On a challenge under section 288 of the Town and Country Planning Act 1990, the court will not revisit the planning merits or interfere with an inspector’s evaluative judgment unless the decision is irrational, legally flawed, inadequately reasoned, or fails to address a material issue.

However, an application for temporary planning permission requires a separate balancing exercise. Where the harm is time-limited and policy requires substantial weight to be given to unmet need, the inspector must address the consequences of refusal, including the likely availability of alternative accommodation, the risk of roadside existence, health, education and Article 8 rights. Failure to make those findings may render the decision irrational and inadequately reasoned.

The claimant, a Romany Gypsy Traveller and disabled single parent, challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of her appeal under section 78 against refusal of permission for a private Gypsy and Traveller caravan site in the Green Belt.

The inspector rejected both permanent and temporary permission. The claimant alleged irrationality, inadequate reasons, failures to make material findings, and errors concerning unmet need, Green Belt harm and UDP Policy BE1. The central issue was whether the inspector had lawfully assessed the very special circumstances relied on for temporary permission.

1. The challenge to the refusal of permanent planning permission failed. The assessment of the weight to be given to unmet need was a matter for the inspector, and the decision was to be read broadly rather than by focusing on minutiae. The challenge under Policy BE1 disclosed no legal error.
2. The refusal of temporary permission was quashed. Although the inspector was entitled to carry across relevant findings from the permanent-permission analysis, temporary permission raised a separate question and required adequate reasoning on the different applicable criteria.
3. The temporary-permission balance materially changed because the harm to the Green Belt would be limited in time, while Circular 01/2006 required substantial weight to be given to unmet need where no suitable alternative site was available and sites might become available through the plan-led process.
4. The inspector had found no suitable, available and affordable alternatives, an absence of a five-year supply, possible eviction, a risk of roadside existence, and serious potential consequences for health, education and quality of life. He nevertheless failed to make clear findings about what would happen after eviction, particularly whether roadside existence was more likely than the provision of an alternative pitch. His reference to possible adverse effects on health was also materially weaker than the medical evidence that roadside existence would harm the claimant’s health.
5. Those matters went to the heart of the Article 8 balancing exercise. The vulnerable position of Gypsies, the claimant’s compelling health needs, the children’s interests and the absence of alternative accommodation could constitute very special circumstances for temporary permission. The decision was irrational and, alternatively, inadequately reasoned. The inspector’s decision concerning temporary permission was therefore quashed.

This was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision dated 9 June 2011 on an appeal under section 78. The inspector had dismissed the claimant’s planning appeal.