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

In planning appeals, a Secretary of State must refer a case back after an inquiry only where relevant new evidence or a new matter of fact, excluding government policy, leads him to differ from the Inspector on a material factual matter and to be disposed to disagree with the recommendation. Policy developments that confirm the recommendation do not trigger that duty. If the rules do not require further representations, the decision whether to invite them is discretionary and reviewable on ordinary public law grounds. A proposed development-plan policy is not part of the development plan. Where need and the lack of alternative sites have been considered, the weight given to them is a planning judgment. Assuming PPS 3 applies to gypsies and travellers, it addresses need but does not displace Green Belt policy or the requirement for very special circumstances. Article 6 does not require the Secretary of State himself to be an independent tribunal.

Mrs Kathleen Murphy, an Irish traveller, lived on a caravan site in the Green Belt and the Chilterns Area of Outstanding Natural Beauty. The site had been developed without planning permission. The owner’s applications for planning permission and appeals against an enforcement notice were dismissed by the Secretary of State after he recovered the appeals from the Inspector.

Mrs Murphy challenged the decision in the Administrative Court. Foskett J dismissed the challenge in [2012] EWHC 1198 (Admin). On appeal, she challenged the recovery of the appeals, the failure to invite further representations after the reinstatement of the regional spatial strategy, the treatment of proposed policy H7, the application of PPS3, and alleged breaches of natural justice and Article 6. The central issue was whether the Secretary of State had acted unlawfully in determining the appeals without further consultation and in balancing need against Green Belt and landscape harm.

Appeal dismissed. The Court of Appeal agreed with Foskett J and dismissed the appeal.

1. The challenge to the recovery decision failed. The point had not been relied on below or pleaded, was out of time, and the published guidance permitted recovery of significant Green Belt development. The recovery power under Schedule 6, paragraph 3 of the Town and Country Planning Act 1990 was therefore lawfully exercised.
2. Under the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 and the corresponding 2002 Rules, a post-inquiry reference is required only where the Secretary of State differs from the Inspector on a material matter of fact, or takes new evidence or a new matter of fact other than government policy, and is for that reason disposed to disagree with the recommendation. The Secretary of State had not disagreed with the Inspector. The policy matters considered tended, if anything, to confirm the recommendation. No reference-back obligation arose.
3. Even where the inquiry rules do not require further representations, natural justice may do so. In that event the invitation is a matter for the Secretary of State’s discretion, subject to ordinary public law review. The Article 6 argument added nothing. The Secretary of State need not himself be an independent and impartial tribunal where the planning and judicial system provides review by an independent Administrative Court. The reasoning in R(Alconbury Developments Ltd) v the Secretary of State [2001] UKHL 23; [2003] 2 AC 295 was followed.
4. Policy H7 was only proposed and did not form part of the development plan. In any event, the Inspector and Secretary of State accepted that there was a need for further gypsy sites and gave significant weight to the lack of alternative sites. The complaint therefore concerned the weight assigned in the planning balance, which was a judgment with which the court could not interfere.
5. Assuming without deciding that PPS3 applied to gypsies and travellers, it went to need. It did not qualify the specific guidance on gypsy and traveller sites or alter the policy that inappropriate development in the Green Belt required very special circumstances. Giving significant weight to need but concluding that it did not outweigh Green Belt and AONB harm was a lawful planning judgment. The appeals were dismissed.

1. Court of Appeal (Civil Division) dismissed Mrs Murphy’s appeal on 16 July 2013: [2013] EWCA Civ 1015.
2. Administrative Court, Queen’s Bench Division Foskett J dismissed the challenge to the Secretary of State’s decision: [2012] EWHC 1198 (Admin).
3. Secretary of State recovered the two planning appeals from the Inspector and dismissed both appeals in a decision letter dated 9 December 2010. The Inspector had recommended dismissal.