CMS-led planning appeal emphasises important points around fear of crime as a planning consideration

On 26 June 2023, a Planning Inspector allowed an important appeal made by Serco Ltd against the refusal of Stafford Borough Council (the “Council”) to grant a temporary planning permission for a change of use from student accommodation in Stafford to permit the occupation of asylum seekers. The decision emphasises important points around fear of crime as a material planning consideration.

Background  

Serco Ltd, represented at the appeal by CMS and Kings Chambers, had applied for planning permission in March 2022. The application was taken to the Council’s Planning Committee for decision on 27 July 2022 where it was refused. The reasons for refusal provided were varied and included concerns around social inclusivity and the impact of the development upon local resources. However, fear of crime was cited as a key reason for refusal. The decision was appealed to the Planning Inspectorate by Serco Ltd in January 2023.

Fear of Crime – A Material Planning Consideration?

It was common ground between the parties at the appeal that ‘fear of crime’ is capable of being a material planning consideration. This means that fear of crime can be properly considered by local authorities as a reason to refuse a planning application. However, there are a series of tests which the local authority must pass before ‘fear of crime’ can be properly considered as a reason for a planning refusal. In particular:

• the fear of crime must be objectively justified;

• the fear of crime must have some reasonable basis; and

• the fear of crime must relate to the use – in planning terms – of the land in question rather than assumptions “not supported by evidence as to the character of future occupiers” (Smith v FSS [2005] EWCA Civ 859).

Appeal Arguments

The Planning Inspector considered the arguments put forward by the main parties and members of the public in respect of the applicability of the ‘fear of crime’ to the appeal scheme. A large portion of the appeal itself was taken up by these considerations, and evidence adduced in this respect.

Counsel for Serco set out in closing submissions that ‘assumptions, unevidenced allegations or, at its very worst, prejudice, do not come close to meeting the[se] tests’, and that, in reference to the Smith case, it was ‘quite impossible to conclude that the use of buildings to accommodate asylum seekers inherently creates a real concern such that which attaches to an institution such as a bail hostel or a chemical factory’.

It was further noted that ‘fear of the unknown’ could not be a material consideration, and the Inspector’s attention was also drawn to the on-site management that Serco would have in place to deal with any issues that may arise – such as on-site 24/7 staffing and CCTV.  

Taking into account these mitigating factors, even if ‘fear of crime’ were material in the case, the Inspector was invited to agree that only very limited weight could be afforded to it.

Appeal Decision

As a result, the Planning Inspector held in his decision that the planning balance was strongly in favour of allowing the appeal, with the Planning Inspector holding that planning permission should be granted without further delay.

In reaching his conclusions the Inspector cited that crime and fear of it form an unfortunate part of society and it was therefore not surprising that criminal cases and anti-social behaviour involving asylum seekers occur. However, the Inspector held that there was no compelling evidence to support arguments put forward at the inquiry that criminal activity is more prevalent or extreme amongst asylum seekers than amongst the general population. Similarly, it had not been demonstrated that those who would be living at the appeal site would pose a significantly greater threat compared to when the property had been occupied by students.  

The Council have since confirmed that after taking legal advice they will not be challenging the decision.

Comment

This decision is notable as it emphasises the clear tests that must be overcome for fear of crime to be a material planning consideration or to be given more than limited weight. Importantly in the Stafford case, the Inspector stated that, whilst he recognised that the fears were real, based on the information before him, they did not appear to be well-founded.

This case has wider relevance for many reasons (in no small part because it will provide over 400 much needed beds for people seeking asylum in the UK). In legal and planning terms it is an important reminder to local authorities that the legal and policy tests for material considerations must be considered carefully before a decision is made. Anecdotal evidence presented at the inquiry of criminal activity by asylum seekers was not considered sufficient. No evidence was presented that asylum seekers were more likely than members of the general public to commit, or attract, crime. In the sphere of planning, it is also important to remember that reasons for refusal must be linked to the proposed land use of a property, not merely the nature or identity of the proposed occupiers.