England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
(MR JUSTICE KEITH)

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th February 2008

Lady Justice Hallett DBE:

1. With a very considerable degree of hesitation I will give the South Cambridgeshire District Council permission to appeal the decision of Keith J, delivered on 18 September 2007, whereby he rejected an   application   by the Council under section 288(1) of the Town and Country Planning Act 1990.
2. I give permission to argue but one point and that is whether or not the inspector, against whose decision there was an appeal to Keith J, was correct in stating at paragraph 74 of the determination:

"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 were available or that particularly, this could not be met from another site."

That proposition was supported by Keith J, who said at paragraph 39:

"I see no basis for saying that if one of those material considerations is said to be the non-availability of a suitable alternative site it is for the applicant for planning permission to prove such non-availability."

3. Miss Sheik has persuaded me that the matter is of some considerable importance to South Cambridgeshire District Council, who have always proceeded on the basis that there is a burden upon the developer, who is effectively breaching a development plan, to prove non-availability of alternative sites. She has also persuaded me that there may be a divergence of views as to whether or not the burden that she claims exists. Despite the fact therefore that, in my view, Keith J has very carefully and fully considered all the points she wished to make and given the fact that I am assured there is likely to be virtually no effect upon Mr and Mrs Brown, who wish to remain where they are to look after their disabled daughter, I am persuaded that this is a matter that should be considered by the full court and which stands a reasonable prospect of success. Accordingly for those reasons I give permission.

Order: Application granted