Bryan Rogers v Secretary of State for Levelling Up, Housing and Communities & Anor

On a planning statutory review, the court may intervene where an inspector adopts an unlawful approach to a temporary permission. Substantial weight attached to Green Belt harm cannot automatically be treated as identical for temporary and permanent permissions, because the duration of harm may affect the planning balance. If a proposed temporary period is rejected, the inspector should consider whether a longer period is acceptable and give adequate reasons.

The best interests of affected children are a primary consideration. No other consideration is inherently more important, but their interests are not determinative. The decision-maker must identify and weigh them clearly within the overall planning judgment.

The claimant challenged an inspector’s dismissal of conjoined appeals concerning planning permission and an enforcement notice relating to a proposed residential caravan site for four gypsy families. The statutory review concerned the planning permission decision under section 288 of the Town and Country Planning Act 1990. The claimant also brought a section 289 appeal, which was withdrawn because the court had no jurisdiction following late service.

The claimant sought permission to challenge the inspector’s treatment of temporary planning permission and the best interests of the children living on the site. The court also considered whether time should be extended for service of the sealed section 288 claim form.

1. Extension of time. The court had power under CPR rule 3.1(2)(a) to extend time for service. Applying R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, the principles in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v TH White Ltd [2014] EWCA Civ 906 did not govern service of originating process. The claimant took reasonable steps, and the failure resulted from delay by the court outside the claimant’s control. Time was extended to the date of service.
2. Ground 1 granted permission. Planning weight and the planning balance are matters for the inspector, subject to irrationality and adequate reasons, applying Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893 and South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.
3. However, Moore v SSCLG and London Borough of Bromley [2013] EWCA Civ 1194 showed that substantial weight attached to Green Belt harm for permanent development may require reduction when permission is temporary. The inspector’s statement that the weight was the same for temporary and permanent permission, followed only by reference to moderated harm, arguably failed to address the corresponding reduction in weight, particularly for inappropriate development. After rejecting a two-year period, the inspector also failed to consider whether a longer period could be acceptable.
4. Ground 2 refused permission. The best interests of children were properly treated as a primary consideration. Applying ZH (Tanzania) v SSHD [2011] UKSC 4, Zoumbas v SSHD [2013] 1 WLR 3690, Dear v SSCLG [2015] EWHC 29 (Admin) and Stevens v SSCLG [2013] EWHC 792 (Admin), the inspector identified the children’s interests, the lack of alternative accommodation and the consequences of a roadside existence. She was entitled to conclude that those factors did not clearly outweigh the identified planning harm.

The section 289 appeal was withdrawn. Permission was granted on ground 1 and refused on ground 2.

First-instance decision. The judgment concerned an application for permission to bring a statutory review under section 288 of the Town and Country Planning Act 1990, together with a withdrawn section 289 appeal.