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

A challenge under Town and Country Planning Act 1990, section 288, concerns the legality of the decision-making process, not the planning merits. The court distinguishes between identifying material considerations, which is a question of law, and deciding the weight to give them, which is ordinarily a matter of planning judgment. An inspector is entitled to assess whether alternative sites exist where that issue has not been removed from consideration by a clear agreement. Personal circumstances and unmet need may carry weight, but the court will not re-weigh them. Procedural assistance from a mentor or reading unit does not itself undermine an inspector’s independence where the decision remains that of the inspector.

The claimant challenged an inspector’s dismissal of his appeal against refusal of planning permission for a gypsy pitch in the Green Belt. The proposed development included the stationing of caravans, hardstanding and an ancillary utility or day room. The challenge under section 288 of the Town and Country Planning Act 1990 alleged that the inspector lacked independence and had misunderstood or mishandled material considerations.

The principal issues concerned Green Belt harm, the aims of the Colne Valley Park, unmet need for gypsy and traveller sites, the availability of alternative sites, personal circumstances, and the effect of mentoring and reading of the inspector’s draft decision.

1. The claim was dismissed. A section 288 challenge is confined to whether the inspector acted within the powers of the Town and Country Planning Act 1990. It is not an opportunity to reargue matters raised before the inspector, introduce matters that could have been raised, or review planning merits. The court relied on Humphris v SSCLG and R (Newsmith Stainless Limted) v SSETR.

2. The distinction stated in Tesco Stores v SSE was applicable. Whether a matter is material is a question of law. The weight given to a material consideration is a matter of planning judgment for the decision-maker, subject only to rationality. The inspector was therefore entitled to give moderate weight to unmet need and personal circumstances, while giving greater weight to harm to the Green Belt and Colne Valley Park.

3. The parties had not clearly agreed that no suitable alternative sites existed. The inspector was entitled to treat the availability of alternatives as an issue for determination. The claimant consequently had to establish that no suitable alternative site was available. The inspector was entitled, on the evidence before him, to regard the Mansion Lane pitches as potentially available and to find that the absence of alternatives had not been demonstrated.

4. Article 8 did not confer a right to live where the claimant chose or to develop land for that purpose. Any individual Article 8 considerations belonged within the assessment of personal circumstances, rather than the assessment of Green Belt harm.

5. The allegation of impropriety was unfounded. Mentors could advise on weaknesses in reasoning or matters requiring consideration, and a reading unit could maintain quality and consistency, provided the inspector remained responsible for the outcome. The earlier draft also dismissed the appeal, and no intervention adverse to the claimant was identified.

6. Even if an error of law had been established, the court would have declined to quash the decision under section 288(5), because there was no reason to suppose that the result would differ on reconsideration.

First-instance judicial review claim under section 288 of the Town and Country Planning Act 1990. No earlier judicial decision is stated.