Smith, R (On the Application Of) v Secretary of State for Communities and Local Government & Anor

A prospective change in planning policy may be a material consideration before the existing policy is formally revoked. A decision-maker may therefore attach reduced weight to a policy which remains in force if there is a rational basis for doing so. The decision-maker need not identify every defect in the existing policy or specify its replacement. Reasons need address the principal issues and need not compare the outcome with a hypothetical decision giving the policy greater weight. PPS3 paragraph 71, concerning a five-year supply of deliverable housing sites, does not apply to Gypsy and Traveller pitches. In any event, failure to refer to it was immaterial where the relevant unmet need had already been given appropriate weight under the specific policy guidance.

The claimant challenged the Secretary of State’s dismissal of appeals concerning the refusal of permanent and temporary planning permission for a private Gypsy caravan site at Moss Road, Askern, Doncaster. The Inspector found substantial Green Belt harm, an immediate unmet need for Gypsy sites, limited alternative provision and relevant personal circumstances. The Secretary of State accepted the Inspector’s conclusions.

The challenge concerned the reduced weight given to Circular 01/2006 following the announced intention to revoke it, the adequacy of the reasons explaining that approach, and the alleged failure to apply paragraph 71 of PPS3. The central issues were whether the reduced weight was irrational and whether paragraph 71 applied to Gypsy and Traveller pitches.

1. The claim was dismissed. The Secretary of State was entitled to treat the announced intention to revoke Circular 01/2006 as a material consideration and to give the Circular reduced weight while it remained in force. Formal withdrawal was not a precondition to reduced weight. It was also unnecessary to identify which parts would be retained, removed or qualified, or to specify the replacement policy. The approach was rational: Cala Homes (South) Limited v Secretary of State for Communities and Local Government established that prospective policy change may be material and that the weight given to a material consideration may, in some circumstances, be irrational.
2. The reasons were legally adequate. The decision-maker had to give sufficient reasons to make the conclusions on the principal issues clear. There was no requirement to explain the precise effect of reduced weight on every factor or to state what the result would have been had full weight been given to the Circular. The Inspector’s assessment of Green Belt harm, unmet need, alternative sites, personal circumstances and proportionality made the reasoning clear.
3. Paragraph 71 of PPS3 did not apply to Gypsy and Traveller pitches. Its five-year supply mechanism concerned permanent bricks-and-mortar housing assessed through the regional and development-plan systems. Gypsy pitch provision was addressed through the separate policy framework in Circular 01/2006, including its treatment of temporary permissions and transit provision.
4. Alternatively, any failure to address paragraph 71 was immaterial. Paragraph 71 and Circular 01/2006 paragraph 45 addressed the same substantive matter: the significance of an unmet need for sites. The Inspector had given that need considerable or substantial weight, so the outcome would inevitably have been the same.
5. The claimant was ordered to pay the Secretary of State’s costs in the sum of £6,677. Permission to appeal was refused.

The judgment describes an Inspector’s report dated 26 January 2011 and the Secretary of State’s decision dated 9 March 2011. This was a first-instance judicial review of that decision.