South Bucks District Council & Anor v. Porter

Factual and Procedural Background

The Appellant, a 62-year-old Romany gipsy, purchased and has occupied “The Site” in the Green Belt since 1985 without planning permission. After earlier enforcement action and refusals of permission, an inspector appointed by the Secretary of State granted the Appellant a personal, retrospective planning permission for a residential mobile home. The Respondent Council brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) alleging the inspector’s decision was ultra vires and supported by inadequate reasons. The High Court dismissed the challenge; the Court of Appeal allowed it. The Secretary of State, having taken no part below, supported the Appellant before the House of Lords, which heard the present appeal.

Legal Issues Presented

1. Whether the inspector’s decision letter gave legally adequate reasons for concluding that the Appellant’s personal circumstances constituted “very special circumstances” justifying development in the Green Belt.
2. Whether the inspector failed to take into account the material consideration that the Appellant’s occupation of the land was unlawful and, in fact, persisted in breach of planning control.

Arguments of the Parties

Respondent Council's Arguments

• The inspector’s reasons were insufficient; a fuller, clearer analysis was required to justify treating the Appellant’s hardship as “very special circumstances.”
• The inspector erred in law by omitting any consideration of the Appellant’s unlawful and longstanding breach of planning control; that unlawfulness should have weighed against granting permission.

Appellant's Arguments

• The decision letter met the established standard: it identified the decisive issues and explained why personal hardship outweighed Green Belt policy.
• The unlawfulness of occupation was either immaterial on the facts or, in any event, was plainly before the inspector, who referred to the retrospective nature of the application and the site’s enforcement history.

Secretary of State's Arguments

• Supported the Appellant on both grounds, emphasising that the statutory scheme allows retrospective permissions and that unlawfulness is not automatically a decisive material consideration.

Table of Precedents Cited

Court's Reasoning and Analysis

I – Reasons Challenge
Judge Brown set out a consolidated statement of principles on adequacy of reasons (para 36 of the opinion). Applying those principles, he found:

• The inspector identified the sole real issue—whether the Appellant’s hardship constituted “very special circumstances.”
• The decision letter explained the Appellant’s serious ill-health, absence of alternative sites and cultural aversion to permanent housing; that explanation sufficed for parties who knew the detailed evidence.
• Requiring a “much fuller analysis,” as the Court of Appeal did, conflicted with authority, particularly Save, which rejects inflating the reasons standard according to issue importance.
• No misdirection of policy or fact and no rationality challenge was advanced; hence, the reasoning created no substantial doubt or prejudice.

II – Vires Challenge (Failure to Consider Unlawfulness)
The House analysed two questions:

1. Materiality: Unlawful occupation can, in some circumstances, weaken a hardship claim, but is not invariably decisive. Given that the Appellant’s hardship did not rely on the length of occupation, its unlawfulness was of “little if any” materiality here.
2. Actual Consideration: The inspector recited the enforcement history and the retrospective nature of the application, demonstrating awareness of the unlawfulness. Under Bolton, matters that are not principal issues need not be expressly discussed. No basis existed to infer omission.

Accordingly, both grounds of the Council’s challenge failed.

Holding and Implications

APPEAL ALLOWED. The House restored the High Court’s order dismissing the Respondent Council’s section 288 application and ordered the Council to pay the Appellant’s costs at all levels; no costs order was made regarding the Secretary of State.

Implications: The decision re-affirms the consistent, pragmatic standard for reasons in planning decisions and clarifies that unlawfulness of existing development is not automatically decisive against retrospective permission; its significance depends on how a hardship claim is framed. No new precedent was set, but the judgment discourages over-zealous reasons challenges.