Noel McGinley v The Secretary of State for Levelling Up, Housing and Communities & Anor

At the permission stage of a statutory planning challenge, an Inspector must give intelligible and adequate reasons for concluding that a five-year supply of deliverable Gypsy and Traveller sites exists. Reliance on recently adopted plan figures does not remove the need to examine whether the sites counted towards that supply are available, suitable and achievable, with a realistic prospect of delivery within five years under the Planning Policy for Traveller Sites.

Where the Inspector’s findings identify potential barriers to delivery but do not resolve whether the relevant sites can contribute to the supply, the challenge is arguable. The issue may be material to the assessment of unmet need and to the subsequent Green Belt balancing exercise.

The Applicant brought conjoined applications for permission to pursue statutory challenges under sections 288 and 289 of the Town and Country Planning Act 1990. The challenges concerned an Inspector’s decision dismissing an appeal against refusal of permission for six Gypsy and Traveller pitches and upholding an enforcement notice relating to the resulting breach of planning control.

The Inspector treated the development as inappropriate Green Belt development, found harm to openness and the countryside, and concluded that the Council could identify a five-year supply of deliverable sites against its locally set target. The central issue was whether the Inspector had adequately considered the deliverability of the Wilden Lane and Zortech Avenue sites and explained the conclusions on five-year supply and unmet need.

1. Permission granted. Permission to proceed was granted on all four grounds in both the section 288 claim and the section 289 appeal.

2. The approach to an Inspector’s decision is governed by the principles identified in Bloor Homes Ltd v SoS [2014] EWHC 754 (Admin). An Inspector’s decision must be construed with reasonable flexibility. The reasons must nevertheless be intelligible and adequate, so that the reader can understand why the appeal was decided as it was. Matters of planning judgment, including the weight given to material considerations, are for the Inspector unless the conclusion is irrational.

3. The Inspector was entitled to rely initially on the figures in the recently adopted Local Plan. She was still required to examine whether the sites relied upon satisfied the deliverability criteria in footnote 4 of the Planning Policy for Traveller Sites.

4. The Inspector’s findings raised arguable concerns about both relevant sites. Wilden Lane was privately owned and being used as a scrapyard, with no guarantee that it would become available. Zortech Avenue was available for purchase, but there was no indication that planning permission had been sought or that access limitations were being resolved. The Inspector later acknowledged continuing access obstacles. Those findings were potentially inconsistent with a conclusion that the sites were achievable and had a realistic prospect of delivery within five years.

5. The Inspector did not appear to factor those findings into the conclusion that a five-year supply existed. The reasoning therefore left unresolved whether Zortech Avenue was deliverable and whether either site could properly contribute to the supply. The conclusion on five-year supply was consequently arguably inadequately reasoned or reached without taking relevant considerations into account.

6. The five-year supply and unmet-need conclusions could affect the Green Belt balancing exercise under Policy E of the Planning Policy for Traveller Sites. The court could not conclude that the planning balance would necessarily have been unchanged if the supply target could not be met.

The Inspector dismissed the planning appeal and upheld the enforcement notice by decision letter dated 22 March 2023. The High Court granted permission for the statutory challenges to proceed.