“ The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”
“66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB . First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning”
“122. Since the site's location within Flood Zone 1 was not determinative of the question whether the sequential test should be applied to the proposed development, it fell to the inspector to decide that question in the exercise of his planning judgment. The inspector made that judgment in DL33. His reasoning in that paragraph reveals the basis on which he did so. Firstly, in accordance with paragraph 162 of the Framework and paragraph 033 of the Practice Guidance, the inspector considered the findings of the SFRA which indicated that the site had the potential for groundwater flooding manifesting itself at the surface of the site. Secondly, he took into account the advice of the FRA that a site investigation would be carried out to establish the groundwater levels on the site; and that the design of the proposed development would respond to the findings of that site investigation. Thirdly, the inspector took account of the position of the Lead Local Flood Authority, which had not raised any objection to the proposed development subject to the imposition of appropriate conditions. Fourthly, he took account of the objectors' contention that the findings of the SFRA and the evidence of surface water flooding at the site constituted a medium degree of flood risk.”
“174. A similar analysis applies in the determination of planning applications. Where there is an unmet need, for example a substantial shortfall in demonstrating a 5-year supply of housing land, that shortfall and its implications (including the contribution which the appeal proposal would make to reducing that shortfall) are weighed in the overall planning balance against any factors pointing to refusal of permission (including any failure to satisfy the sequential test). If the total size of sequentially preferable locations is less than the unmet housing need, so that satisfying that need would require the release of land which is not sequentially preferable, that too may be taken into account in the overall planning balance. But these are not matters which affect the carrying out of the sequential test itself. Logically they do not go to the question whether an alternative site is reasonably available and appropriate (i.e. has relevant appropriate characteristics) for the development proposed on the application or appeal site. Instead, they are matters which may, for example, reduce the weight given to a failure to meet the sequential test, or alternatively increase the weight given to factors weighing against such failure”
“61. Both main parties confirmed at the hearing that there were no known alternative sites. However, the appellants have a stated preference for private sites where they can live as a single extended family group. The appellants are not likely to be looking for sites elsewhere given their occupation of this site. There are no existing public sites in Crawley, the borough is highly constrained, and other sites in adjoining Council areas are in significant demand. With the exception of Broadfield Kennels, the Council had no other sites come forward as part of the ELP call for sites process. Though the consideration of alternative sites should have formed part of the sequential testing process, I have already highlighted that there is an absence of evidence in this regard. I therefore afford moderate weight to the lack of suitable and available alternative sites.”
“69. I afford the personal circumstances of the appellants’ extended family significant weight. With regard to the best interests of the children specifically, a settled base without overcrowding would be in the best interests of all the children in terms of their mental health and physical well-being, personal development, engagement with their friends, and access to education. As such, the best interests of the children have significant weight in my decision.”
“70. Notwithstanding that the proposal would be contrary to the development plan, it is necessary to consider whether there are material considerations which would warrant a decision other than in accordance with the development plan. 71. There are several considerations in favour of the proposal. These include significant weight given to the provision of two pitches, significant weight to the personal circumstances of the extended family, significant weight to the best interests of the children, and moderate weight to alternative sites. 72. The matters in respect of the safeguarding of land for Gatwick Airport expansion and the living conditions of occupiers are neutral in the planning balance as the scheme is not harmful to either of these main issues, subject to the imposition of a temporary planning permission. .. 75. Having regard to paragraph 55 of the Framework and PPTS paragraph 28, I have considered whether any conditions would render otherwise unacceptable development acceptable, with particular regard to temporary permission. However, it has not been demonstrated that this would be the case. 76. Having had regard to all material considerations, the benefits associated with the proposal do not outweigh the harms I have identified. Accordingly, the identified harms can only be adequately addressed by my dismissal of the appeal. Interference with the human rights of the appellants and their extended family is therefore necessary and proportionate. I have had due regard to the PSED and found that the development would provide the opportunity to advance its aims, but this must be set against my findings on flood risk and the safety of the site’s occupiers. Dismissal of the appeal therefore represents a proportionate response in this instance.”