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

A planning inspector considering temporary permission for a gypsy and traveller site must assess the likely practical consequences of refusal where they are central to the planning and human rights balance. It is insufficient merely to describe roadside camping as possible where evidence permits a finding about its likelihood.

The assessment must address the resulting interference with family life, including effects on health and education. It must also compare the environmental harm caused by granting temporary permission with any equal or greater harm likely to follow from refusal. Although challenges to planning judgment on grounds of irrationality face a demanding threshold, a refusal may be unlawful where it does not reasonably reflect the factors that policy and the circumstances require the decision-maker to weigh.

The respondent, a Romany gypsy traveller, lived with her three children in a mobile home on a Green Belt site. The local planning authority refused permission to use the land as a gypsy and traveller caravan site. A planning inspector dismissed her appeal and refused both permanent and temporary permission.

The respondent challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990. Cox J allowed the challenge concerning temporary permission and quashed the inspector’s decision: [2012] EWHC 3192 (Admin). The Secretary of State appealed.

The central issues were whether the inspector’s refusal of temporary permission was irrational, whether he had to determine the likely consequences of eviction, and whether his reasons were inadequate.

1. The appeal was dismissed unanimously. Cox J had applied the demanding threshold governing a Wednesbury challenge and had not impermissibly substituted her own view of the planning merits. The inspector’s refusal of temporary permission did not reasonably reflect the factors requiring consideration in that context.

2. The relevant policy required substantial weight to be given to unmet need where no alternative gypsy and traveller sites were available but sites might become available through the development-plan process. That guidance was linked to the objective of avoiding homelessness through eviction from an unauthorised site where no alternative site existed. The inspector’s reasoning therefore required careful scrutiny.

3. The inspector had to decide whether the family was more likely than not to resort to roadside camping if temporary permission were refused. Merely describing that outcome as possible, or saying that it was not certain, was insufficient. The likely outcome of refusal lay at the heart of the required balance and there was ample evidence upon which the inspector could make a finding.

4. The finding was central to the application of article 8 of the European Convention on Human Rights. A likely roadside existence would entail substantially greater interference with family life, particularly through its effects on health and education, than would the availability of alternative accommodation.

5. The same finding was material to environmental harm. The inspector had found that roadside camping would probably be equally harmful to the Green Belt and potentially more harmful to the countryside. Although this did not strictly cancel the harm caused by granting temporary permission, the balance would necessarily be affected if refusal produced equal or greater environmental harm.

6. It was far from inevitable that the inspector would have reached the same conclusion had he determined the likelihood of roadside camping and followed through its implications. The Court of Appeal therefore upheld the quashing order. It was unnecessary to decide whether the inspector had also given inadequate reasons. The separate issue concerning children’s best interests as a primary consideration was left open.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed unanimously. The order quashing the inspector’s refusal of temporary planning permission was upheld: [2013] EWCA Civ 1194 .
2. High Court, Administrative Court: Cox J upheld the statutory challenge insofar as it concerned temporary planning permission and quashed the inspector’s decision: [2012] EWHC 3192 (Admin) .
3. Planning inspector: The respondent’s appeal against the local planning authority’s refusal was dismissed. Both permanent and temporary planning permission were refused.