Central Bedfordshire Council v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 21 June 2017 |
| Neutral Citation | [2017] EWHC 1952 (Admin) |
| Date | 21 June 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/310/2017 |
[2017] EWHC 1952 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
THE PLANNING COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holgate
CO/310/2017
Miss S Kabir Sheikh QC appeared on behalf of the Claimant
Mr M Rudd appeared on behalf of the Defendant
The Central Bedfordshire Council renews its application for permission to apply for statutory review of the decision of the Defendant's inspector.
The application for planning permission initially made as long ago as 14 October 2011 and refused on 6 January 2012. The development initially proposed the use of the application site for the stationing of caravans for six family gypsy pitches with utility, day room, buildings and ancillary hardstanding.
The application was called in for decision by the Secretary of State. The Secretary of State issued a decision refusing the application, but that in turn was quashed by an order of the High Court following a submission to judgment. The application has since been "derecovered". In other words, it was then to be determined by an inspector. It was common ground that although the Secretary of State's decision had been quashed, the earlier inspector's report in the previous inquiry remained a material consideration.
By the time of the second inquiry held in April and September 2016, the site plan had been revised so the number of pitches had been reduced from six to five and the size of the pitches had also been reduced. The inspector allowed the application and granted planning permission for that reduced scheme.
The inspector dealt with Green Belt policy considerations between paragraphs 11 and 14. In paragraph 11 he recorded that the development was inappropriate and therefore, permission could only be granted if "very special circumstances" could be found. Such circumstances would have to outweigh clearly all other harm, including harm to the Green Belt.
In paragraph 12 he dealt with the harm to the Green Belt in addition to inappropriateness through any harm to openness. At that stage, he considered the visual impact of the proposal on openness and considered that it would be, in his judgment, minimal.
In paragraph 13 he dealt with the second and other aspect of openness, which is sometimes referred to as the spatial, physical or volumetric effect on openness, those expressions having effectively the same meaning. He based his conclusion on the reduced scale of the scheme and decided that there would be only moderate harm to that aspect of openness.
He then went on to deal with the effect of the development on the character and appearance of the area. He concluded in DL16 that there would be a moderate negative impact on that aspect.
He devoted paragraphs 17 to 28 to sterilisation of minerals and concluded that very little weight should be given to that aspect.
Between paragraphs 29 and 38 he then turned to need and the gypsy and traveller accommodation assessment conducted by the local authority. At the end of paragraph 38 he recorded, and agreed with, the Council's acceptance that they did not have a five year supply of land for this purpose, that no alternative sites were available at that stage and that the situation was unlikely to be resolved until the adoption of a local plan in at least three years' time.
At paragraph 29 he dealt with the likely location of pitches and concluded that there was likely to be some pitch provision in the Green Belt to meet the needs identified through the local plan process.
In paragraphs 40 and 41 he then dealt with the overall striking of the balance under Green Belt policy, at that stage ignoring personal circumstances. At the end of paragraph 41, having referred to the need for additional accommodation and the lack of supply and alternative sites, and bearing in mind also that there was likely to be some future provision of pitches in the Green Belt, he decided that the outcome of the balance was finely balanced. Therefore, at that point in his decision, the points taken in favour of the proposal did not clearly outweigh the harm to the Green Belt and other harms.
In paragraphs 42 to 48 he then dealt with the personal circumstances of the occupiers of the site. Of particular note, he said in 48:
"The personal circumstances of the proposed occupiers of the site are, in my view, significant. The alternative is to remain on the road. Several of the adults have poor health, and they would benefit from a settled site, but most important is the needs of the 13 children for a stable base for educational and health reasons."
Footnote 8 makes it clear that the children included one as yet unborn baby.
He gave his overall conclusions in paragraphs 49 and 50. In paragraph 49 he stated:
"In my view therefore, bearing in mind the need to make the best interests of the children a primary consideration and the finely balanced nature of the planning balance described above, the personal circumstances of the future occupiers of the site, when added to the mix, clearly outweigh the harm to the green belt and other harms… and that as a consequence very special circumstances exist and I shall allow the appeal."
In paragraph 50 he identified two changes which had occurred since the decision of the Secretary of State had been quashed: first, the nature of the site had altered in the sense that natural vegetation, particularly around the boundary to the site, had become much thicker and secondly, the scale of the development proposed had been significantly reduced.
Next, he took into account the prospect that the local authority's gypsy and traveller local plan was going to be adopted. Initially this had been anticipated to be by July 2014 with the provision of additional pitches predicted for 2016. But the GTAA had been delayed and now the examination in public of the local plan is not anticipated to take place until December 2017 and adoption of that document delayed until September 2018.
In the first ground of challenge it is argued that the inspector failed to have regard to the Secretary of State's Planning Policy for Traveller Sites ("PPTS") issued in 2015, in particular paragraph 16.
Having repeated the principle that inappropriate development is harmful to the Green Belt and the test for allowing development in the Green Belt is the "very special circumstances" test, the policy continues:
"Traveller sites (temporary or permanent) in the Green Belt are inappropriate development....
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