South Bucks District Council and Anr. v. Porter (FC)

Mrs. Porter, a 62 year old Romany gypsy, lived in a mobile home on a plot of land that she purchased in 1985. Her occupation of the site was unauthorized from the beginning. The home provided the appearance of a “permanent dwelling” but was in violation of the local Council’s planning control that did not allow “inappropriate development in the Green Belt.”  In 2000, the Council had refused Mrs. Porter’s request for retention of her home, which decision was appealed to an inspector appointed by the Secretary of State. The inspector granted her permission to retain her residential mobile home in the Green Belt.

Under the statutory development plan, inappropriate developments in the Green Belts should not be approved “except in very special circumstances”.  The had inspector concluded that Mrs. Porter’s home did constitute an inappropriate development, but there were “very special circumstances” to allow her appeal, namely the fact that Mrs. Porter was a gipsy, that she had no alternative housing options since there was a significant waiting list for gipsy housing sites, and that she had chronic health issues which required her to stay in place to continue medical treatment.

The Council challenged the inspector’s grant of planning permission but the court of first instance upheld the inspector’s grant. This decision was appealed to the Court of Appeals, who quashed the inspector’s decision, noting the inadequacy of the inspector’s reasoning due to, inter alia, his failure to consider the unlawfulness of the Mrs. Porter’s occupation and the failure of the Mrs. Porter to, until recently, apply for alternative housing sites. The Court of Appeals suggested that if established planning policies were to be overridden on the grounds of personal hardship, a more comprehensive approach to the issue was required.

This decision was appealed to the House of Lords (the House) by Mrs. Porter and the Secretary of State.

The House considered two primary challenges of the Council to the inspector’s decision to grant Mrs Porter’s appeal: a reasons challenge and a vires challenge.

With respect to the reasons challenge, the Council argued that the inspector did not adequately explain his reasoning as required by the relevant act. The House noted that in order to survive a reasons challenge, an authority’s reasons for a decision must, inter alia, be intelligible, adequate, and enable a reader to understand why a matter was decided in a particular way and what the conclusions were for the principle controversial issues and that “[a] reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”[Para. 36] Applying this criteria to the case at hand, the House found that the inspector’s reasoning was clear and ample and not grounded in a any material misdirection of fact, law, or policy.

The vires challenge regarded whether Mrs. Porter’s breach of the planning control, or unlawfulness, was a material consideration and whether the inspector overlooked it in his reasoning. The House found that the unlawfulness of a development could be a material consideration, depending on whether the occupier sought to rely on his or her continuing use of land as evidence of special circumstances. However, in the case at hand, the inspector had not concluded that Mrs. Porter’s special circumstances were related to the length of her occupancy, and therefore the lawfulness of the establishment and occupancy of her home was not a material consideration.  In any case, the House found that the Court of Appeals was not correct in concluding that the inspector had failed to consider the lawfulness of Mrs. Porter’s occupancy in coming to his determination.

Thus, the House permitted Mrs. Porter’s appeal. They additionally restored an order that dismissed the Council’s statutory application with costs and ordered the Council to pay Mrs. Porter’s legal expenses.

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principle important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not be readily drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognizing that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” Para 36.

“I cannot accept that submission. To my mind the inspector's reasoning was both clear and ample. Here was a woman of 62 in serious ill-health with a rooted fear of being put into permanent housing, with no alternative site to go to, whose displacement would imperil her continuing medical treatment and probably worsen her condition. All of this was fully explained in the decision letter (and, of course, described more fully still in the reports produced in evidence at the public inquiry). Should she be dispossessed from the site onto the roadside or should she be granted a limited personal planning permission? The inspector thought the latter, taking the view that Mrs. Porter's "very special circumstances" "clearly outweighed" the environmental harm involved. Not everyone would have reached the same decision but there is no mystery as to what moved the inspector.” Para. 41.

“I do not accept that the unlawfulness of development can never properly militate against the retrospective grant of planning permission…. Rather it seems to me that wherever the occupier seeks to rely upon the very fact of his continuing use of land it must be material to recognize the unlawfulness (if such it was) of that use as a consideration operating to weaken his claim.” Para 52.

“When the inspector came in para 13 of his decision to summarise the very special circumstances of Mrs Porter’s case—her status as a gipsy, the lack of an alternative side in the area, and her chronic ill-health—none of these factors appears to have owed anything to the length of her residence on the side; her case would have been no different even had she occupied the site for an altogether shorter period.” Para 55.