Dear v Secretary of State for Communities And Local Government & Anor

In a planning challenge under Town and Country Planning Act 1990, a previous appeal decision may be a material consideration because consistency in the planning system is important. A decision-maker who departs from an materially indistinguishable earlier decision must confront the inconsistency and give clear reasons for doing so. The court may nevertheless decline to quash where the error could not realistically have affected the outcome. Planning judgments about weight remain for the decision-maker. The best interests of children are a primary, but not paramount, consideration. The weight initially attributed to those interests may be adjusted after considering the circumstances and competing factors. The final label attached to the weight is a matter of substance rather than form.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s dismissal of her appeal concerning a Gypsy and Traveller site in the Green Belt. She challenged the refusal of temporary planning permission, alleging inconsistency with an earlier inspector’s decision concerning another nearby traveller site and inadequate reasons for departing from it. She also alleged that insufficient weight had been given to the best interests of children living on the site, contrary to Articles 3(1) of the United Nations Convention on the Rights of the Child and 8 of the European Convention on Human Rights.

1. Grounds 1 and 2 were made out. The Flashley Carr Lane decision was a material consideration. The two sites were sufficiently proximate and the decisions addressed the same material issue: whether further traveller sites were likely to become available within a reasonable period.

2. The Secretary of State was legally required to have regard to the earlier decision. An inspector appointed by him exercises delegated powers, so, as a matter of legal form, the Secretary of State was deemed to have made both decisions. He was required either to accept the earlier finding or to depart from it with clear and proper reasons. His decision did neither.

3. That error did not justify quashing. The Secretary of State had found that the harm to the Green Belt from even a two-year temporary permission would remain substantial and would not be clearly outweighed by the other considerations. The earlier decision contemplated future provision only after a longer period. It was therefore not clear that consideration of it could realistically have made a difference.

4. The use of the word “greatly” in describing the likely change in planning circumstances did not disclose an error of law. The decision letter had to be read straightforwardly and the Secretary of State had plainly understood the relevant guidance.

5. The best interests of the children were a primary consideration, but not the primary or paramount consideration. Applying ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, the decision-maker was required to identify and take them into account. He was not required to retain a fixed description of their weight throughout the balancing exercise. “Modest weight” described the conclusion reached after considering the competing factors, not the starting point.

6. Grounds 4 and 5 failed. The Secretary of State had identified the relevant matters, treated the children’s best interests as a primary consideration and gave adequate reasons. The claim was dismissed.

First-instance statutory challenge under section 288 of the Town and Country Planning Act 1990. The Secretary of State’s recovered appeal had been dismissed on 10 June 2014. The claim was dismissed.