South Cambridgeshire District Council v Secretary of State for Communities & Local Government & Anor [2008] EWCA Civ 239

Case No C5/2007/2282[2008] EWCA Civ 239
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN’S BENCH DIVISION
(MR JUSTICE KEITH)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 4 th February 2008
Before
LADY JUSTICE HALLETT DBE
Between
SOUTH CAMBRIDGESHIRE DISTRICT COUNCILAppellantSECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT & ANRRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms S Sheikh (instructed by Messrs Sharpe Pritchard) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
JudgmentLady Justice Hallett DBE:
[1]With a very considerable degree of hesitation I will give the South Cambridgeshire District Council permission to appeal the decision of Keith J, delivered on 18 September 2007, whereby he rejected an application by the Council under section 288(1) of the Town and Country Planning Act 1990.[2]I give permission to argue but one point and that is whether or not the inspector, against whose decision there was an appeal to Keith J, was correct in stating at paragraph 74 of the determination:
“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 were available or that particularly, this could not be met from another site.”
That proposition was supported by Keith J, who said at paragraph 39:
“I see no basis for saying that if one of those material considerations is said to be the non-availability of a suitable alternative site it is for the applicant for planning permission to prove such non-availability.”
[3]Miss Sheik has persuaded me that the matter is of some considerable importance to South Cambridgeshire District Council, who have always proceeded on the basis that there is a burden upon the developer, who is effectively breaching a development plan, to prove non-availability of alternative sites. She has also persuaded me that there may be a divergence of views as to whether or not the burden that she claims exists. Despite the fact therefore that, in my view, Keith J has very carefully and fully considered all the points she wished to make and given the fact that I am assured there is likely to be virtually no effect upon Mr and Mrs Brown, who wish to remain where they are to look after their disabled daughter, I am persuaded that this is a matter that should be considered by the full court and which stands a reasonable prospect of success. Accordingly for those reasons I give permission.

Order

Application granted