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

A planning decision-maker must address the principal factual findings and planning judgments bearing on whether an alternative site can meet an identified need. A planning permission for an alternative site does not make its suitability irrelevant, particularly where the welfare of children is engaged. The decision-maker may disagree with an inspector’s planning judgment, but must explain that disagreement and identify the evidential basis for it. Adequate reasons are required on the principal controversial issues, and a failure will justify quashing where it causes substantial prejudice. The Secretary of State is entitled to balance development-plan conflict, housing need, personal circumstances and Convention rights, and may act as both policy-maker and planning decision-maker.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision dismissing his section 78 appeal. The appeal concerned refusal of permission under section 73 to continue a gypsy and traveller site after expiry of a temporary permission.

An inspector recommended a further two-year temporary permission. He found an immediate need for pitches and significant uncertainty about whether the Council’s proposed Meadow Lane site would provide acceptable living conditions. The Secretary of State disagreed, treating Meadow Lane as sufficient to meet the area’s needs and concluding that the policy conflicts were not outweighed by the material considerations or the occupiers’ Convention rights.

The central issue was whether the Secretary of State had adequately addressed the inspector’s findings about Meadow Lane and its suitability as an alternative source of accommodation.

1. The claim succeeded and the Secretary of State’s decision letter dated 1 October 2014 was quashed.

2. Under section 70 of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, the Secretary of State had to consider the development plan and material considerations. The weight given to those considerations was for him, not the court.

3. The inspector’s assessment of Meadow Lane contained both factual findings and a planning judgment about whether the site would provide suitable residential conditions. The Secretary of State was entitled to reach a different planning judgment. However, he did not identify any factual finding or planning conclusion with which he disagreed. Instead, he relied on the Council’s future responsibility to provide acceptable living conditions, without explaining the source or content of that responsibility and without evidence that the identified noise, odour, flooding and waterlogging problems would be overcome.

4. The existence of planning permission for Meadow Lane did not make suitability irrelevant. The site’s contribution to the supply of pitches could not rationally be treated as sufficient without engaging with the inspector’s conclusion that its contribution might be significantly reduced or negated, and that its suitability should be assessed after it had operated.

5. The Secretary of State had given adequate consideration to Article 8 rights and the best interests of the children. Those matters did not themselves establish the claim. The approach in Stevens v Secretary of State for Communities and Local Government and Collins v Secretary of State for Communities and Local Government was applicable: the best interests of children are a primary consideration, but are not determinative.

6. The allegations of bias and the challenge to recovery of jurisdiction were misconceived. Recovery was a procedural step and was not challengeable under section 288. The principle in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions permitted the Secretary of State to be both policy-maker and decision-maker, subject to fairness and adequate judicial review.

7. The inadequate treatment of the Meadow Lane issue concerned a principal issue and substantially prejudiced the claimant. The decision letter was therefore quashed.

This was a first-instance claim for judicial review under section 288 of the Town and Country Planning Act 1990. The Secretary of State’s decision letter dismissed the claimant’s section 78 appeal against refusal of section 73 permission.