The Queen (on the application of Kerry Whitehead on behalf of the Copthorne Village Association) v Mid Sussex District Council

JurisdictionEngland & Wales
JudgeMrs Justice Elisabeth Laing DBE
Judgment Date23 November 2020
Neutral Citation[2020] EWHC 3166 (Admin)
Docket NumberCase No: CO/1645/2020
Date23 November 2020
CourtQueen's Bench Division (Administrative Court)

[2020] EWHC 3166 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Elisabeth Laing DBE

Case No: CO/1645/2020

Between:
The Queen (on the application of Kerry Whitehead on behalf of the Copthorne Village Association)
Claimant
and
Mid Sussex District Council
Defendant

and

Gleeson Strategic Land Limited
Interested Party

Richard Turney (instructed by Kingsley Smith Solicitors LLP) for the Claimant

Paul Brown QC (instructed by Sharpe Pritchard LLP) for the Defendant

John Litton QC (instructed by James Smith (Planning Law Services) Limited) for the Interested Party

Hearing dates: 13 October 2020

Mrs Justice Elisabeth Laing DBE

Introduction

1

This is an application for judicial review of a decision of Mid Sussex District Council (‘D’) on 16 March 2020 to grant outline planning permission (‘the Permission’) to the Interested Party (‘the IP’) for a residential development at land north of Clayton Mills, Ockley, Hassocks, West Sussex (‘the Site’).

2

Permission to apply for judicial review was granted on the papers by Lang J on 19 June 2020.

3

The Permission reserved all matters except for, among other things, access for up to 500 residential dwellings and land for a two-form entry primary school and community building, and associated infrastructure (which was described).

4

The Claimant (‘C’) is a representative of the Copthorne Village Association (‘the CVA’). The CVA is an unincorporated association representing the village of Copthorne. The CVA opposes D's proposals to develop land at Copthorne as a permanent site for caravans and mobile homes and caravans for gypsies and travellers.

5

In 2018, D applied successfully for planning permission to develop a site at Copthorne for that purpose (‘Permission A’). In 2019, the CVA applied for judicial review of Permission A.

6

The local Development Plan (‘DP’) provides that strategic development sites in D's area can be used to provide for pitches for gypsies and travellers, and new conventional housing. The CVA opposes proposals which do not make such provision, because if it is not made on strategic sites, D relies on the lack of such provision to justify the proposal that the Copthorne site should be used as a standalone site for gypsy and traveller pitches.

7

The Site is a strategic site, but the development authorised by the Permission does not include on-site provision for gypsy and traveller pitches. Instead, D has secured a financial contribution from the IP of £750,000 for such provision elsewhere. That aspect of the Permission is the focus of this application for judicial review.

8

As summarised by C in her skeleton argument, her challenge to the Permission has two limbs.

i. The Officers' Report (‘the OR’) misdirected members of the planning committee (‘the Committee’) by using the constraints of the site to justify the provision of pitches at a different site. The OR was based on a misinterpretation of the development plan, did not draw members' attention to material considerations and did not comply with section 149 the Equality Act 2010 (‘the 2010 Act’).

ii. The OR misdirected members by failing to draw their attention to constraints on the Copthorne site, by failing to consider whether the pitches could be delivered within an appropriate time, failed ‘properly’ to address constraints at existing gypsy and traveller sites and failed to consider whether there was a supply of other sites in accordance with national policy.

9

Paragraph 26e of D's skeleton argument for the hearing noted that the D's application for planning permission for pitches for Gypsies and Travellers at the Copthorne site was ‘expected to be reported to Committee in October. Depending on the date on which the Court hands down judgment in this case, it is entirely possible that that permission will have been granted’. Mr Brown told me at the hearing that the planning committee was due to consider D's application for planning permission for a Gypsy and Traveller site at Copthorne on Thursday 15 October 2020.

Events after the hearing

10

I reserved judgment after the hearing.

11

On 21 October I received an email from Mr Turney. This revealed that D's application for planning permission for a Gypsy and Traveller site at Copthorne was not considered by the Committee on 15 October 2020. The reason given by D's officers was that the landowner no longer wanted to be identified as an applicant. The application was withdrawn from the Committee to enable the appropriate statutory notices to be served. It is not clear when the application will be considered again. A potentially more fundamental problem then emerged, according to Mr Turney. It appeared that D's former control over the site had lapsed in December 2019, before the OR was prepared. At that stage, C did not know whether, when officers prepared the OR in February 2020, they knew that D no longer had control of the site, or whether D was aware of that.

12

I asked D to provide a witness statement giving an explanation as soon as possible. I indicated my provisional view that if the parties wished to make written submissions once that explanation had been given they should have an opportunity to do so.

13

D then lodged witness statements from Messrs Ashdown and Clark. It is convenient to summarise that evidence in the next section of this judgment. All the parties also then made further written submissions. Mr Turney asked to reply to the submissions from D and the IP, and I allowed him to.

D's knowledge of the ownership of the Copthorne site and of the progress of the application for planning permission for Gypsy and Traveller accommodation on that site

14

Mr Ashdown is a planning officer. He wrote the OR in this case. His evidence is that D has a strict policy of separation between its statutory functions in order to avoid conflicts of interest. This is particularly important when D is applying for planning permission for a site. It is not unusual for officers in D's property and estates department to know things which Mr Ashdown does not.

15

Mr Ashdown did not have any direct dealings with the application for the Copthorne site, but did ask the officer who was dealing with that application for updates. As a result, he knew about the application for Permission A, which was made in the joint names of Mrs Layla Heal, the owner of the Copthorne site, and Mr Peter Stuart (D's Head of Corporate Services). Mr Ashdown also knew that the officer dealing with that application only dealt with the appointed planning agent, and only on planning matters.

16

The ownership of the land was not material to the application. This meant that neither Mr Ashdown nor the officer dealing with that application knew who owned the relevant land. The design and access statement (‘DAS’) for that application said ‘Landowner willing to allow land to be used for traveller accommodation through private use and sale to the Council for public use. No overriding legal constraint known’. Mr Ashdown did not see the DAS but it was consistent with what he knew about that application. This information gave no reason to think that the site would not be available.

17

Mr Ashdown did not know anything after the quashing of Permission A which changed this. When he finished the OR, on 11 February 2020, planning agents acting for D's Corporate Estates had made a pre-application request about an alternative scheme for the Copthorne site. The agents had met the relevant planning officer. This, says Mr Ashdown, was reflected in the OR.

18

He also knew that a public consultation about the proposals for the Copthorne site had started on 18 February 2020, two days before the Committee met to consider the application for planning permission for the Site. The consultation information said that D and the site owner had prepared a new scheme for ‘public and private Gypsy and Traveller accommodation on land’ at Copthorne. There was nothing, he says, to indicate that the application for the new scheme would not go ahead, or that, ‘unlike the primary application, it would not be a joint application’.

19

Mr Ashdown contends that there was no reason to change the planning advice, which was that the Copthorne site was available, suitable and achievable.

20

Although this is not relevant, as it happened after the Committee met and decided to grant the Permission, an application for a revised scheme was in fact made on 11 May 2020 by Mrs Heal and Mr Stuart. The statement I have described in paragraph 16, above, was repeated in paragraph 4.20 of the DAS for this second application for the Copthorne site.

21

On 14 October 2020, the day before the Committee was due to consider the second application for the Copthorne site, Mrs Heal sent an email (to D, I infer) saying that she no longer wished to be a joint applicant for planning permission. D decided to withdraw the application from the Committee in order to consider the implications of Mrs Heal's change of heart. D has not withdrawn, so that application is still live. Soon after that email, C's solicitors emailed D in its capacity as local planning authority (‘ LPA’), Mr Tom Clark, D's Head of Regulatory Services, and the solicitor who had been advising D's Estates Department on the application, and Mr Stuart. The second email went further than Mrs Heal's, by suggesting that they ‘believe[d] that she will not agree to the site's being developed as envisaged by the application’. The second email did not explain how C's solicitors knew that.

22

Mr Ashdown did not know when he wrote the OR that the contract between D and Mrs Heal (‘the Agreement’) might have expired in December 2019. He now knows more about the Agreement (which is described in Mr Clark's witness statement; see the next paragraph), but does not consider that, if he had known more, it would have caused...

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