“in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or as the case may be, the condition or limitation concerned ought to be discharged.”
“The Secretary of State has taken account of circular 1/2006: Planning for Gypsy and Traveller Caravan Sites as a material consideration in his determination of this case. However, in reaching his decision he has also taken account of his announcement on29 August 2010 of his intention to revoke it as he considers it to be flawed; and he gives less weight to the Circular. However, he is satisfied that the announcement does not raise any matters which would affect his decision or require him to refer back to parties for further representations prior to reaching his decision.”
“20. PPS7 states that nationally designated areas including National Parks have the highest status of protection in relation to landscape and scenic beauty, and that the conservation of the natural beauty of the landscape and countryside should be given great weight in development control decision in these areas (IR17) [that is, paragraph 17 of the Inspector’s Report]. In relation to sites located within National Parks, the Secretary of State notes that Circular 1/2006 states that planning permission for gypsy and traveller sites should only be granted where it can be demonstrated that the objectives of the designation will not be compromised by the development (IR101). SEP policy C2 states that the purposes of the National Park’s designation should be a material consideration in the making of any planning decision that may significantly affect the Park. As set out by the Inspector at IR17, the purposes of the South Downs National Park designation are to conserve and enhance the natural beauty, wildlife and cultural heritage of the area and to promote opportunities for the understanding and enjoyment of the special qualities of the Park by the public. 21. Having had regard to IR101-109, the Secretary of State agrees with the Inspector’s reasoning and analysis. He shares the Inspector’s view that the development has an urbanising impact on an area of largely unspoilt countryside (IR107), and agrees with his conclusion at IR110 that the residential use of the site unacceptably harms the natural beauty of the area. He also agrees that, although a suitable landscaping scheme would reduce the overall harm, the development would continue to have a negative visual impact on the National Park (IR110). The Secretary of State considers that the harm that the scheme would cause to the character and appearance of this part of the National Park is very substantial. Given this he concludes that the appeal scheme conflicts with national policy in PPS7, with SEP policies C2 and CC1ii, and that it does not fully comply with policy CC6i. He also concludes that the scheme conflicts with LP policy BE11.”
“The Secretary of State has given careful consideration to the Inspector’s analysis at IR119-120. Like the Inspector (IR120), he gives limited weight to the assertion that the appellants have not lived on the site since the enforcement notice was issued. He agrees with the Inspector that some weight in favour of the scheme should be attached to the considerations relating to Chris Searle’s family (IR122). For the reasons set out at IR120-121, the Secretary of State agrees with the Inspector’s conclusions at IR123 that the appellants have a personal need for a site and that no alternative authorized sites have been advanced that would be available to them. However, given there are no school age children on the site and none of the current site occupants have specific health requirements, the Secretary of State considers it appropriate to give somewhat less weight to this matter than the Inspector has done in IR121.”
“The Secretary of State has gone on to consider whether a temporary planning permission would be justified. For the reasons given at IR130-131, the Secretary of State considers that the conditions exist whereby the decision maker should consider whether a temporary consent is appropriate. He shares the Inspector’s view (IR83) that, in relation to consideration of temporary planning permission, a period expiring some 12 months after the adoption of the DPD would be reasonable (i.e. until31 December 2013 ). In considering the case for a temporary consent, he attributes substantial weight to the unmet need for sites in Chichester. The Secretary of State is of the view, however, that the harm which would arise in this particular case is unacceptable even for a limited period of time, and that the purposes of the National Park’s designation would be compromised, and that this is not acceptable, even for a limited period of time.”
“It is impossible to see why an intention to revoke a Circular cannot lead to reduced weight being given to it. It would be quite wrong to say that a circular had to be withdrawn before it had less weight given to it. That is a contradiction in concept.”
“Likewise I do not consider the fact that the government has not made clear, at least as at the time of the hearing, what parts of the circular might remain, what parts might be wholly removed, or what might be qualified, means that it still had to receive full force and weight as if there were no intention to replace it. In my judgment it is perfectly rational for a Secretary of State to say, as does the Secretary of State here, that Circular 01/2006 is a flawed policy, to which he will give less weight, albeit that it remains a policy in force and not revoked. He does not have to identify the particular errors in it in order to reach that judgment lawfully, nor does he have to identify what will replace it in order to reach that judgment. He is entitled to say that he will give it less weight.”
“In many instances it is difficult to see, I would add, given the language of the report and the decision, that giving less weight to the circular has had any significant effect at all. It is not a particularly intellectually coherent way of dealing with policy since there may be a process of reasoning which is concealed within the Secretary of State's mind, and not made explicit, whereby certain aspects of the circular, which he regards as more flawed than others, have been given less weight than those which he regards as wiser, but that degree of imperfection does not amount to an error of law in the reasoning. It cannot be said that he has provided legally inadequate or insufficient or insufficiently clear reasons for his conclusions on the principal issues.”
“The question whether there is sufficient incoherence, hidden reasoning and imperfection to amount to an error of law is different in Smith to the situation in the current appeal. In Smith the [Secretary of State] agreed with an IR firmly recommending refusal; in the current appeal he disagreed with a well-reasoned IR recommending permission. In this appeal, where the Inspector and the [Secretary of State], having applied 1/06 paragraphs 45 and 46, reached different conclusions, the incoherence does amount to a failure to give adequate and sufficiently clear reasons. It is right that each gave ‘substantial weight’ to these paragraphs, but the phrase ‘substantial weight’ covers a wide range of degrees of weight, namely any degree of weight that is not insubstantial, and it is not clear whether the [Secretary of State] gave less weight than he would otherwise have done because of his intention to revoke circular 1/06 and replace it.”
“6 An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits. 7 In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. 8. … Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task …”
“I consider that the development has an urbanising impact in an area of largely unspoilt countryside. The extent of the foliage around the site can be clearly seen from the photographs contained at Appendices H and J of the Council’s Statement. This gives an indication of the degree to which it provides screening and how it varies throughout the seasons. Clearly in winter, the site is visible to a greater extent from the surrounding roads through the trees.”
“Looking therefore, at the Inspector’s report it was quite true, as Mr. Towler submitted, that in broad terms whether something was visible was a matter of fact, though there might be occasions when it was a matter of opinion, but in broad terms whether something was to be seen was a matter of fact. Whether it was visually intrusive seemed to be a matter of opinion. When one looked at the Inspector’s report, he set himself quite properly the task of deciding whether it was visually intrusive. That in essence was a question of opinion. There was no dispute, but whether it was materially harmful was undoubtedly a question of opinion. There were phrases in the report such as “prominent.”