Legal report - Case explores relevance of alternative site search

Kate Creer, Planning, 26 September 2008

Personal permission had been granted on appeal for a Gypsy family despite conflict with local plan policy arising from the significant adverse effect on a rural area. The family's personal circumstances were held to outweigh the policy conflict and the harm to the area. One child required regular medical care and the family wanted to remain in the area to continue her care and attendance at a special school.

The council challenged the decision on various grounds but its appeal was rejected by the High Court. Permission to appeal was granted on one ground only - whether the High Court judge was correct in stating that "in seeking to determine the availability of alternative sites for residential Gypsy use, there is no requirement in planning policy or case law for an applicant to prove that no other sites are available or that particular needs could not be met from another site".

Act appeal challenges clarified

Before considering this point, the Court of Appeal set out its general view on section 288 challenges:

- A decision may only be challenged on ordinary administrative law grounds.

- Interpretation of policy is a matter for the decision-maker. Where the interpretation is one that the policy is reasonably capable of bearing, there is no basis for court intervention.

- The weight to be attached to material considerations and planning judgement is within the exclusive jurisdiction of the decision-maker.

- Decision letters must be read in good faith and references to policies taken in the context of the thrust of the reasoning. The adequacy of reasons is to be assessed on whether there is room for doubt as to what the decision-maker has decided and why.

- There is no obligation on the decision-maker to refer to every material consideration, only the main issues in dispute.

- Reasons can be briefly stated, with the degree of particularity depending on the nature of the issues for decision. The reasoning must not give rise to substantial doubt as to whether there was an error of law, but such an inference will not readily be drawn.

Against this background, the court reviewed the inspector's main conclusions. On the key issue, she had found that there was no requirement in planning policy or case law for the applicant to prove that no other sites were available or that particular needs could not be met from another site, since such a level of proof would be practically impossible.

Site search analysis supported

She stated that lack of evidence of a search and clear availability of sites in more suitable locations would undoubtedly weigh against the applicant where there were policy or other objections. Equally, evidence of a genuine search by the applicant and the absence of any obvious alternatives would weigh in his favour.

She saw no requirement for the applicant to prove that he had exhausted all possible alternatives before consent could be granted, nor any requirement for the authority to identify an alternative site before refusing permission. These were simply material considerations to be weighed, she held. The High Court judge agreed with this analysis.

The Court of Appeal concluded that the law is clear. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires a determination to be made in accordance with the development plan unless material considerations indicate otherwise. There is no burden of proof on anyone. In determining applications, decision-makers must decide what the material considerations are and then give each such weight as they consider appropriate.

The weight to be given to any material consideration is a matter of planning judgement for the decision-maker. The court held that the inspector had approached the subject of alternative sites "in an impeccable fashion" and saw no basis for interfering with her decision under section 288. This view should apply in all cases, unless there is a policy requirement to prove that there is no preferable alternative.

- Kate Creer is head of the Liverpool planning team at DLA Piper.