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

The Court of Appeal considered whether an inspector and the High Court had failed to give appropriate weight to the local authority’s breach of its statutory duties under section 225 of the Housing Act 2004 (to assess gypsy and traveller accommodation needs and, where required, prepare a strategy) when deciding whether to grant temporary planning permission for a site in the Green Belt. The court summarised the relevant statutory framework including section 8 Housing Act 1985, section 87 Local Government Act 2003, section 225 Housing Act 2004, section 72 and section 288(5)(b) Town and Country Planning Act 1990, and guidance in Circular 1/2006 and Circular 11/95.

The inspector had found an unmet need for gypsy and traveller sites, recognised the council’s failure to progress a development plan document and concluded that planned provision was unlikely in the foreseeable future. He considered the consequences of that failure and weighed the unmet need and the appellant’s personal circumstances against substantial harm to Green Belt openness and purposes. The Court of Appeal held that the inspector had taken the section 225 failure into account and given it significant weight, but that the harm to the Green Belt and other considerations were not clearly outweighed. The inspector’s approach was within the range of lawful judgments and the Decision Letter adequately explained the reasoning.

Background and parties: Since 2007 the appellant, a person with traveller status for planning purposes, had occupied a privately owned site on Green Belt land. Planning permission had been refused by the local planning authority and the Planning Inspector dismissed the appellant’s appeal on 1 February 2011, refusing both permanent and temporary permission. The appellant sought judicial review under section 288(5)(b) of the Town and Country Planning Act 1990. Holman J rejected the application on 23 April 2012. The appellant appealed to the Court of Appeal on a single ground.

Nature of the claim and relief sought: The appeal sought to challenge Holman J’s refusal to quash the inspector’s decision. The appellant contended that the inspector had failed to place any or sufficient weight on the council’s breach of its statutory duty under section 225 Housing Act 2004 and on the absence of a strategy for gypsy and traveller accommodation when considering whether temporary planning permission should be granted.

Issues for determination:

• whether the council’s failure under section 225 was a material factor in favour of granting temporary permission;
• whether the inspector placed sufficient weight on the absence of an accommodation strategy in the light of paragraphs 45 and 46 of Circular 1/2006;
• whether Holman J’s conclusions were legally correct.

Reasoning and findings: The court reviewed the inspector’s Decision Letter. The inspector had expressly dealt with need for gypsy sites, referred to the figures in the regional policy, recorded the council’s failure to progress a DPD, and found that unmet need would not be met by planned provision in the foreseeable future. He concluded that provision would depend upon the grant of private permissions and that the unmet need weighed in favour of granting permission. When considering temporary permission he concluded that a further period of occupation would perpetuate harm to the Green Belt for an unacceptable length of time and that there was no realistic prospect of planned provision arising to justify temporary permission. The Court of Appeal found that the inspector did take the section 225 failure and its practical implications into account and gave it significant weight, but reasonably concluded that this did not outweigh the substantial harm to the Green Belt. The inspector’s balancing exercise and reasons were within permissible judgment; there was no failure to consider Article 8, the Framework Convention or the public sector equality duty such as to vitiate the decision.

Procedural posture: Appeal from the Administrative Court (Holman J) [2012] EWHC 1303 (Admin) following an inspector’s decision dated 1 February 2011. The Court of Appeal dismissed the appeal.

Appeal dismissed. The Court of Appeal held that the inspector had recognised the council’s breach of the section 225 duty and its implications, had given that failure significant weight in the planning balance, and was entitled to find that the substantial harm to Green Belt openness and purposes was not clearly outweighed by those considerations. The Decision Letter gave adequate reasons and the inspector’s approach was within the range of lawful judgments.

Appeal to the Court of Appeal from the Administrative Court (Holman J) [2012] EWHC 1303 (Admin). The Planning Inspector dismissed the appellant’s appeal on 1 February 2011. Holman J refused the appellant’s s288(5)(b) challenge on 23 April 2012. The Court of Appeal dismissed the appeal (decision handed down 23 May 2013; the appeal was dismissed on 14 May 2013 and judgment circulated on 23 May 2013).