Planning permission – Change of use – Gypsies – Planning inspector upholding refusal of planning permission for change of use of agricultural land to private caravan site – Claimant applying to quash decision – Government announcing intention to revoke circular on travellers’ sites – Whether inspector erring in giving less weight to circular – Whether inspector giving adequate reasons for decision – Whether inspector erring in failing to consider PPS3 – Application dismissed
The claimant and her family were gypsies and travellers within the meaning of paragraph 15 of Circular 01/2006: Planning for Gypsy and Traveller Caravan Sites. They occupied and began to develop land located within the green belt for use as a private gypsy site. Following the service of an enforcement notice requiring them to leave, the claimant applied for planning permission for a change of use from agricultural land to a private caravan site. The second defendant local authority refused that application.
The first defendant secretary of state accepted the recommendations of an inspector appointed to consider the claimant’s appeal against the refusal of planning permission and upheld that refusal. The inspector noted that the government had announced its intention to revoke Circular 01/2006 and to replace it with a light-touch guidance outlining councils’ statutory obligations. No timing of that revocation had been announced and an impact assessment was required. The inspector took the view that the announcement was a material consideration which had to be taken into account and affected the weight to be attached to the circular as a statement of government policy.
The claimant applied to the high court for an order that the first defendant’s decision be quashed pursuant to section 288 of the Town and Country Planning Act 1990. Central to the claimant’s challenge was her reliance on Circular 01/2006 and Planning Policy Statement (PPS) 3, specifically paragraph 71, which recommended that local planning authorities should consider planning applications favourably where they could not demonstrate an up-to-date five-year supply of deliverable sites.
The claimant argued that the first defendant had: (i) acted irrationally in giving less weight to the circular on the basis that he had decided to revoke it, but had not yet withdrawn it, as it was impossible to predict which parts might be amended or replaced as of the date of the decision letter; (ii) erred by failing to provide legally adequate and clear reasons; (iii) been under an obligation to look upon the claimant’s application for planning permission more favourably, in accordance with paragraph 71 of PPS3 but had ignored that policy.
Held: The application was dismissed.
(1) It was indisputable, as a matter of principle, that a prospective change in planning policy was capable of being material and could be considered in deciding whether to grant planning permission. The weight to be given to any prospective change was a matter for the planning judgment of the decision maker in each particular case: R (on the application of Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] 2 EGLR 75 followed.
That did not mean that a decision-maker exercising a planning judgment was under no legal restraint at all in considering prospective changes to planning policy. There might be cases where the weight given by a decision-maker to a material consideration was irrational. However, the factors relied on by the claimant in the present case did not demonstrate the point she was trying to make. The circular did not have to be withdrawn before weight could be given to the fact that it was no longer there. If the absence of the circular could be given weight and have an effect on a decision-maker, it was impossible to see that an intention to revoke could not lead a decision-maker to attribute less weight to that circular. It was wrong to say that the circular had to be withdrawn before less weight could be attributed to it and it was perfectly rational for the first defendant to say that the circular was a flawed policy to which he would give less weight albeit that the policy remained in force.
(2) The first defendant was not obliged to explain the particular way in which the giving of less weight to the circular had affected his decision. Giving full weight to the circular was not the starting point against which the decision had to be explained and justified. The position in law was that the first defendant was required to give sufficient reasons so that the decision on the principal issues was clear. In explaining herself, the inspector had made clear her conclusions on the principal issues and, taken by themselves, shorn of any reference to the circular, her conclusions were unimpeachable, and were deemed to be the first defendant’s conclusions. It was not necessary for the first defendant to set out what the decision would have been if less weight had not been given to the circular. Accordingly, it could not be said that the first defendant had provided reasons on the principal issues that were inadequate, insufficient, or insufficiently clear.
(3) PPS3 was incapable of applying sensibly to the provision of pitches for gypsy and traveller caravan sites. Paragraph 71 did not apply as it referred to the favourable consideration given to planning applications for housing where there was less than a five-year supply of deliverable sites. The reference to a five-year supply arose from regional spatial strategy and local development plan documents, which dealt in an entirely separate way with the provision of housing and the provision of pitches for gypsies. As the provision of such sites was different and separate, it followed that the five-year periods referred to in paragraph 71 referred exclusively to housing other than by gypsy site provision in that it dealt with the provision of bricks and mortar accommodation for permanent accommodation. Even if that was wrong, the failure to consider PPS3 was of no consequence, as both the circular and PPS3 were not cumulative sources, but different documents making the same point. Therefore the first defendant had not erred in his approach.
Marc Willers (instructed by Davies Gore Lomax LLP, of Leeds) appeared for the claimant; Hereward Phillpot (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister