O'Connor v Secretary of State for the Communities and Local Government & Anor

An Inspector may satisfy a policy requiring substantial weight to be given to unmet need without repeating that phrase, provided the decision read fairly shows that the need was considered and given the required weight. An Inspector’s decision letter must be read in good faith and as a whole. Failure to mention a particular policy paragraph does not establish legal error. The court should intervene only where the decision creates substantial doubt that the Inspector misunderstood the policy or reached an irrational conclusion. Temporary planning permission requires a distinct assessment, but the material considerations are not altered by the temporary duration. Where Green Belt and landscape harm remains unacceptable even temporarily and cannot be mitigated by conditions, refusal is lawful.

Mrs O’Connor, an Irish Traveller, sought planning permission for a private gypsy and traveller caravan site in the Green Belt. The local planning authority refused permission, and a Planning Inspector dismissed her appeal. The Administrative Court dismissed her application to quash that decision in [2012] EWHC 942 (Admin).

The appeal concerned whether the Inspector had properly applied paragraph 46 of Circular 01/2006 by giving substantial weight to unmet need when considering temporary permission, and whether paragraph 109 of Circular 11/95 had been misapplied. The central issue was whether the Inspector’s decision, read as a whole, disclosed a legal error.

1. Appeal dismissed. The Inspector’s reasoning on permanent permission was not challenged. His refusal of temporary permission was also lawful.
2. Separate assessment of temporary permission. The court accepted that the Inspector addressed permanent and temporary permission as separate questions. Paragraph 46 of Circular 01/2006 required substantial weight to be given to unmet need where there was no available alternative provision and a reasonable expectation that sites would become available. The Inspector expressly considered the Circular, unmet need, the shortage of sites, the development plan process, the absence of an identified alternative site, and the personal circumstances of Mrs O’Connor and her family.
3. The Inspector did not use the expression substantial weight in the temporary-permission section. That omission was not fatal. Reading the decision fairly and as a whole, he had given substantial weight to unmet need. The approach in London Borough of Bromley v Secretary of State for Communities and Local Government [2008] EWHC 3145 (Admin) and Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2009] PTSR 19 supported that conclusion.
4. Temporary harm and conditions. Circular 11/95 did not alter the material considerations merely because permission was temporary. A temporary permission could not be justified simply by the need for a period in which to assess amenity effects. Where harm could not be accepted and could not be safeguarded by conditions, refusal was the proper course. The Inspector found that the Green Belt and local landscape harm remained unacceptable even for two or three years and could not be adequately mitigated.
5. Lord Justice Laws added, in a concurring observation, that the challenge illustrated the exegetical sophistication deprecated in Clarke Homes Limited v Secretary of State, Volume 66, Property and Compensation Reports 263 at 272. The order was that the application be refused.

• Court of Appeal (Civil Division): Appeal dismissed. Permission to appeal had been granted by Elias LJ.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Application to quash the Planning Inspector’s decision dismissed by Mr John Howell QC, [2012] EWHC 942 (Admin).