Robert Whitcher v Secretary of state for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 28 October 2015 |
| Neutral Citation | [2015] EWHC 3001 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 October 2015 |
| Docket Number | Case No: CO/1992/2015 |
[2015] EWHC 3001 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/1992/2015
and
Stephen Cottle (instructed by Community Law Partnership) for the Claimant
Gwion Lewis (instructed by Government Legal Department) for the 1 st Defendant
Scott Stemp (instructed by The New Forest National Park Authority Legal Services) for the 2 nd Defendant
Hearing date: 13 th October 2015
Background
On 1 st June 2012 the claimant, who is a Romany Gypsy, applied for planning permission for the change of use of land which he owned at Brambly Hedge, Latchmore Drove, Landford, Salisbury, to a single pitch Gypsy site for one mobile home and one touring caravan. That application was refused by the second defendant on 13 th August 2012. The claimant appealed and on 24 th July 2013 his appeal was allowed. One of the matters which was in issue in both the application and the appeal was the proper understanding of policy CP13 of the second defendant's Core Strategy and Development Management Policy DPD adopted in December 2010. The policy provides as follows:
"Policy CP13: Gypsies, Travellers, and Travelling Show people
Proposals for the provision of permanent and / or transit accommodation to meet an established need of Gypsies, travellers and travelling show people will be supported with the National Park where it can be demonstrated that there is a need for the site to be located within the National Park; and
a) the impact of the site on the landscape character of the National Park is acceptable;
b) the site is well located on the highway network and will not result in a level of traffic generation inappropriate for the roads in the National Park;
c) there are adequate on-site facilities for parking and storage;
d) in the case of any permanent site, be located where there are appropriate local facilities (e.g. shops, schools and public transport); and
e) the site does not detrimentally affect the amenities of surrounding occupiers."
Following the grant of planning permission on appeal there was an application under section 288 on the Town and Country Planning Act 1990 to quash the Inspector's grant of consent. Whilst the first defendant conceded that claim the claimant sought to uphold the Inspector's decision and the application was heard by Mr Timothy Straker QC (sitting as a Deputy High Court Judge). In relation to the proper construction of policy CP13 he concluded as follows in his judgment:
"38 The language of CP13 is to my mind perfectly clear. It indicates that the proposals to meet an established need will be supported where it can be demonstrated that there is a need for the site to be located within the National Park. The demonstration of the need for the site to be located within the National Park can no doubt be done in many and varied ways.
39 It may be capable of being done by virtue of certain personal characteristics but it does not follow that it cannot be done otherwise. The essence of the matter is that one has to follow through the terms of policy CP13."
Having concluded that the Inspector had misconstrued policy CP13 the Judge quashed the appeal decision and the appeal was sent back to the first defendant to be re-determined.
A further inquiry was held to determine the appeal and the Inspector received evidence on behalf of the claimant in relation to his need for the use for which planning permission was sought. That evidence dealt in particular with his association with the New Forest area. In addition evidence was heard from Dr Murdoch, a Chartered Town Planner, dealing with planning policy and also the evidence in relation to need for Gypsy and traveller sites within the wider area. In support of the claimant's contention that policy CP13 was satisfied Dr Murdoch drew attention to the grant of planning permission by the second defendant in respect of the grant of the application to allow the removal of conditions in relation to another Gypsy site so as to change the consent from a temporary permission to one which was permanent. That site, known as "Forest View", had initially been granted temporary permission in 200The consent had been renewed for a further five years in 2009. In the Officer's Report on the application the following was observed:
"11.4 A recent joint assessment of Gypsy and traveller accommodation needs in Hampshire was undertaken and identified a projected future need for two pitches in the National Park by 2017.
11.5 However, notwithstanding that, the site also needs to be assessed against the criteria of policy CP13 (which relates to Gypsies and travellers and which has been adopted since the previous permission). Specifically it has to be demonstrated that there is a need for the site to be located within the National Park and then subject to a number of criteria: that the landscape impact is acceptable; the site is well located on the local highway network; the residential amenities of surrounding occupiers is not detrimentally affected; and there are local facilities in the vicinity.
11.6 The precise wording of the policy CP13 has come under scrutiny following a High Court challenge to the (allowed) appeal at Brambly Hedge, Landford. In his decision, the Deputy Judge agreed that, notwithstanding that there may be an assessed need for sites in the wider area of South Wiltshire, it has to be demonstrated that the site must be located in the National Park.
11.7 The temporary site at "Forest View" in Landford has existed since 2004 and meets the specific needs of the present occupant of the site, who has demonstrated a particular affinity with the area – he has worked in the locality and his wife is buried near Romsey. The information accompanying the application is that he intends to remain there "for the remainder of his life". This site is therefore considered to meet the need expressed in policy CP13 and its continued use for Mr Webb and his dependants would therefore be acceptable."
The claimant both before the Inspector and also in submissions to the court drew attention within this decision firstly, to the approach taken to the correct application of policy CP13 and secondly, to the comparability of the evidence in that case to that available to the claimant to demonstrate a satisfaction of the requirements of the policy.
The Inspector's decision
The Inspector dismissed the appeal and provided reasons in a decision letter dated 23 rd March 2015. One of the main issues which he had identified both as part of the inquiry process and also within his decision was whether or not there was a need for the appeal site having regard to policy CP13. He addressed within his decision both the proper understanding of CP13 and whether on the evidence the claimant met its requirements. The Inspector's reasons on these issues were as follows:
"Interpretation of Policy CP13
8. The appellant interprets the first part of Policy CP13 as being satisfied if there is shown to be a need for sites within the National Park. The NPA interprets it as having two elements both of which need to be satisfied. The first being to establish a generic need and the second to then consider whether a particular site specific proposal needs to be in the National Park
9. I interpret the first part of the policy as having two elements as described by the NPA. National guidance in the PPTS [Planning Policy for Traveller Sites] advises that local planning authorities should prepare and maintain an up-to-date understanding of the likely permanent and transit accommodation needs of their areas over the lifespan of their development plan. A recent accommodation assessment for Hampshire (HTAA) sets out an estimate of projected future need for traveller pitches in the Hampshire districts and in the National Park. It identifies a need for two additional pitches in the National Park for the period up to 2017 but with no further requirement up to 2027. It is a modest notional figure but nonetheless satisfies the requirement that there should be an established need.
10. To satisfy the second element of Policy CP13 proposals that come forward should show a need to be within the National Park. Each proposal has to be assessed individually. The policy is not prescriptive but such an assessment would be likely to include the activities of the proposed occupiers within the National Park, their employment and their family circumstances.
11. Gypsy and traveller development, by its nature, is likely to be harmful to the landscape and scenic beauty of the National Park even though sometimes the individual harm may not be great. By limiting new Gypsy development to that with an established local need, Policy CP13 is limiting harm to the National Park and supporting the NPPF objectives, particularly paragraph 115. The PPTS advises that applications for traveller sites should be determined from any travellers and not just from those with local connections. I consider that the first part of Policy CP13 is properly interpreted as a two stage test, that such an interpretation is in line with national planning policy, and that the policy should be given full weight.
Need for a location in the National Park
12. Mr Whitcher is a Romany Gypsy whose family have a long tradition of living in and around the New Forest. His grandfather was employed as head ploughman in Brockenhurst and his father lived there in an encampment until shortly after the Second World War when he married and...
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