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

In a challenge to a planning inspector’s decision, the court must review legality, rationality and adequacy of reasons, rather than revisit the planning merits or substitute its own judgment. An inspector may assess the availability of alternative accommodation by considering whether sites could objectively meet the particular needs of the individuals concerned. Article 8 does not require the decision-maker to give effect to a person’s subjective preference for a particular location. Planning judgments may take account of likely future availability, and consistency with an earlier decision does not require identical outcomes where the inspector explains a different evaluative approach. Procedural fairness is assessed in the round. The introduction or updating of evidence at a hearing is not inherently unfair where the statutory procedure gives the inspector discretion and the affected party has an adequate opportunity to respond.

The claimants challenged an inspector’s decision concerning the continued residential use of Green Belt land as a gypsy caravan site. The inspector had dismissed an appeal under section 174 of the Town and Country Planning Act 1990 against an enforcement notice and an appeal under section 78 against refusal of a further permission under section 73A.

The challenges alleged procedural unfairness arising from evidence about alternative sites, inadequate reasoning, failure to distinguish availability from suitability, and failure to comply with Article 8 of the European Convention on Human Rights. The court also considered whether the inspector had properly exercised planning judgment and explained her departure from an earlier assessment of one alternative site.

1. Outcome. The application under section 288 of the Town and Country Planning Act 1990 was dismissed. Permission to proceed with the section 289 appeal was refused because the grounds were not properly arguable.
2. Procedural fairness. Rule 11 of the Town and Country Planning (Hearings Procedure) (England) Rules 2000 gives the inspector broad control over hearing procedure. Rule 11(9) permits a statement of case to be altered or supplemented where necessary, subject to an adequate opportunity for other participants to consider fresh material. The Planning Inspectorate’s procedural guide is non-statutory guidance. The relevant question was whether the hearing was procedurally unfair in the round. The evidence concerning vacancies updated and amplified the written case; it did not create an impermissible new case. The claimants’ experienced representative could have sought an adjournment or further opportunity to respond but did not do so.
3. Availability and suitability. The inspector was entitled to conclude, on the evidence as a whole, that a reasonable number of sites were available or likely to become available. Availability was not confined to the position on the date of the site visit. The relevant Article 8 inquiry was whether alternative sites could objectively meet the families’ particular needs. That required consideration of their personal circumstances, family arrangements, and access to education and healthcare, but did not require acceptance of their preferred location.
4. Planning judgment and reasons. The weight given to competing planning considerations was for the inspector. She was entitled to reach a different view from an earlier inspector about the Lands End site because she considered the earlier criticism and explained why the evidence before her justified a different assessment. Her reasons on availability, suitability, the planning balance and proportionality were clear and adequate.

First-instance judicial review and statutory appeal proceedings in the High Court (Administrative Court). The court dismissed the section 288 application and refused permission to proceed with the section 289 appeal.