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Alternative sites – the burden of proof


South Cambridgeshire District Council v Secretary of State for Communities and Local Government & Ors [2008] EWCA Civ 1010 was an appeal of a High Court decision on Judicial Review of the decision of an Inspector in the appeal of a planning decision not to allow residential caravan siting for a family on a property in South Cambridgeshire.

The family involved had srong personal reasons involving the medical condition of a child for remaining in the area. Planning permission was refused on the basis that it was against the regional development plan. The inspector allowed the appeal with strict conditions on the basis of the exceptional conditions. South Cambs challenged on the basis, amongst others, that the Inspector had failed to seek evidence on the availibility of alternative sites. At JR, South Cambs lost on all counts, but an appeal was eventually allowed on the limited point:

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 are available or that particular needs could not be met from another site.

South Cambs relied on a number of Green Belt cases, and then suggested Judge Gilbart QC’s comments in McCarthy v Secretary of State for Communities and Local Government [2006] EWCA (Admin) 3287 set a precedent. The Court of Appeal held otherwise, noting that the passage at issue was if anything, a restatement of the balancing of issues, not a setting of a necessary hurdle. The Green Belt cases involved other priorities so were not on point.

Lord Justice Scott Baker at para 36, states

In my judgment the law is clear. The position is governed by s38(6) of the 2004 Act. The Development Plan is determinative unless material considerations indicate otherwise. There is no burden of proof on anyone. It is a matter for the planning authority, or in this case the inspector, to decide what are the material considerations and, having done so, to give each of them such weight as she considered appropriate. That, so it seems to me, is a matter of planning judgment.

South Cambs sought to broaden the appeal, arguing the Inspector’s reasons for her decision were inadequate. This was dismissed in view of the High Court judgment, which dealt with the point fully.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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