Mark Wenman v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 21 April 2015 |
| Neutral Citation | [2015] EWHC 925 (Admin) |
| Date | 21 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5795/2014 |
[2015] EWHC 925 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang
Case No: CO/5795/2014
Michael Rudd (instructed by Hawksley's Solicitors) for the Claimant
Stephen Whale (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 27 March 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In this claim under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990"), the Claimant applies to quash the decision of the Secretary of State for Communities and Local Government, dated 30 October 2014, made on his behalf by an Inspector (Mr Graham Dudley), in which he dismissed his appeal against the refusal of planning permission by Waverley Borough Council ("the Council").
The Claimant and his wife are Romany gypsies who have been living in a mobile home at land adjacent to East View Cottages, Dunsfold Road, Surrey, GU6 8JB ("the site"). They have been unable to find a space on the local gypsy sites. They would like their 3 year old son to attend the local schools, which the Claimant himself attended as a boy, and to have the benefit in growing up in an area where there is a community of gypsies. They have tried living in a house, but they found it too claustrophobic.
On 3 September 2012, the Claimant applied to the Council for planning permission for a proposed development, namely:
"The use of land for the stationing of caravans for residential purposes for 1 no. gypsy pitch together with the formation of additional hard standing and utility/dayroom ancillary to that use."
The Claimant's intention was to live in the mobile home, and use the bathroom and kitchen facilities in the newly-built adjacent utility/dayroom. He would also keep a touring caravan on the site.
The Council refused planning permission on 2 August 2013. The reasons were:
a) The proposal conflicted with strategic and local planning policy advice regarding the countryside beyond the Green Belt set out in Policies C2, D1, D4 and H11 of the Waverley Borough Local Plan 2002. Within those areas the intrinsic character and beauty of the countryside is to be protected and the development in open countryside outside existing rural settlements is strictly controlled. The proposed development did not comply with the requirements of those policies.
b) The Claimant had not confirmed his traveller status, nor explained why he could not occupy traveller sites in the area. The Council had recently granted a number of permissions for traveller sites in the area which it believed met the current need for traveller accommodation. The proposal therefore conflicted with Local Plan Policy H11 and the national 'Planning Policy for Traveller Sites' ("PPTS"), in particular policy H.
c) The Claimant failed to comply with the Planning Infrastructure Contributions SPD and Local Plan Policies D13 and D14.
The Claimant and his wife sold their house in September 2013 and, despite the refusal of planning permission, began to occupy the site from November 2013.
In the meantime, on 15 October 2013, the Council issued an enforcement notice alleging breach of planning control, namely, without planning permission:
a) a material change of use from agricultural to the stationing of a mobile home for residential purposes, and
b) an engineering operation consisting of excavation of the land and the laying of hard standing.
The enforcement notice required cessation of use, removal of the mobile home and hard standing, and restoration of the land, within one week.
The Claimant's appeal against the enforcement notice, under section 174 TCPA 1990, was allowed in part, by variation of the time for compliance from 1 week to 18 months, in recognition of the difficulty in finding alternative accommodation. Other than that variation, the enforcement notice was upheld, and the Claimant does not seek to challenge it in this Court.
The Claimant appealed against the refusal of planning permission under section 78 TCPA 1990, and the appeal was heard together with the appeal against the enforcement notice. His appeal was dismissed. The Inspector found that the proposal would cause substantial and unacceptable harm both by reason of its location, at the edge of the village, in the transitional area between settlement and countryside, and because the unsympathetic appearance of the mobile home would be at odds with its surroundings and the adjacent buildings. For these reasons, the proposed development was not sustainable and it was in conflict with the National Planning Policy Framework ("NPPF") and Local Plan policies.
Legal framework
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990. The NPPF is a material consideration for these purposes.
In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, the House of Lords held that the proper interpretation of planning policy is ultimately a matter of law for the court, and a failure by a planning authority to understand and apply relevant policy will amount to an error of law. However, as Lord Reed explained at [19]:
"19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse ( Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 659, 780 per Lord Hoffmann)."
These principles apply equally to the application of national planning policy, both by planning authorities and Inspectors.
An Inspector's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
Ground 1: a flawed approach to the application of the NPPF
Submissions
Mr Rudd submitted that the Inspector adopted a materially flawed approach to the application of the NPPF, in four respects:
a) It was common ground before the Inspector that the Council could not demonstrate a five year supply of deliverable housing and therefore paragraph 49 NPPF was engaged. The Inspector adopted too narrow an approach in determining what constituted a policy for the supply of housing under paragraph 49, and thus failed to dis-apply Policies C2, D1 and D4 in the Local Plan.
b) Although the Inspector acknowledged that Policy RD1 was a policy for the supply of housing, for the purposes of paragraph 49 NPPF, he gave it weight and thus failed to dis-apply it, as required by paragraph 49 NPPF.
c) The Inspector incorrectly reversed the test to be applied under paragraph 14 NPPF, which is whether the adverse impacts of the proposed development significantly and demonstrably outweigh the benefits. The test applied by the Inspector was whether the benefits outweighed the adverse impacts.
d) The Inspector erred in carrying out a free-standing assessment of...
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