Gypsies – Planning permission – Enforcement notice – Claimant Romany gypsy applying to quash decision dismissing appeal against refusal of planning permission and enforcement notice – Whether inspector adopting flawed approach to National Planning Policy Framework (NPPF) – Application granted
The claimant and his wife were Romany gypsies who had been living in a mobile home on land adjacent to East View Cottages, Dunsfold Road, Surrey, when they could not find a space on the local gypsy sites. They wanted their three-year-old son to attend the local schools, which the claimant had attended, and to have the benefit of growing up in an area where there was a community of gypsies.
The claimant had applied to the second defendant local authority for planning permission to use the land for the stationing of caravans for residential purposes of one gypsy pitch together with the formation of additional hard standing and a utility/day room 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 utility/dayroom. He also wished to keep a touring caravan on the site.
Planning permission was refused and the second defendants issued an enforcement notice alleging breach of planning control, namely, a material change of use from agricultural to the stationing of a mobile home for residential purposes and 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 appeals against the enforcement notice and refusal of planning permission were heard together. Following an inquiry, an inspector appointed by the first defendant secretary of state 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.
The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash that decision. He contended, among other things, that the inspector had adopted a flawed approach to the National Planning Policy Framework (NPPF).
Held: The application was granted.
(1) Paragraph 49 of the NPPF provided that housing applications should be considered in the context of the presumption in favour of sustainable development. In principle, paragraph 49 enabled gypsies, travellers or others to rely on the failure of the local planning authority to demonstrate a five-year supply of deliverable housing sites in support of their applications for planning permission for mobile homes or caravans. However, in deciding which polices for the supply of housing were relevant to the application, the decision-maker was entitled to consider whether, and to what extent, a policy for the supply of housing, other than for pitches on traveller sites, had any relevance to the application before him and, if so, the weight to be accorded to it.
In the present case, Local Plan Policy C2 imposed a very general restriction on development in the open countryside and the inspector had erred in treating it as a policy which was not for the supply of housing and in not considering the application of paragraph 49 of the NPPF: South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin); [2014] PLSCS 12 applied.
(2) The inspector had concluded that Policy RD1 was a policy for the supply of housing within paragraph 49 of the NPPF. It had to be read with Policy C2 which restricted development beyond the rural settlements identified in RD1. Where a policy was considered out of date, there was a presumption in favour of granting planning permission for sustainable development unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole or specific policies in the NPPF indicated development should be restricted: see paragraph 14 of the NPPF. In his conclusions on planning balance, the inspector had erred in applying the wrong test by reversing the test to be applied under paragraph 14 and concluding that the significant benefits would not outweigh the substantial harm to the surrounding area.
The inspector had erred in applying Policy RD1 as if it was fully in force and unaffected by paragraph 49 of the NPPF. However, he had been entitled to make a free-standing assessment of the sustainability of the proposed development, in the exercise of his planning judgment, at an appropriate stage in his reasoning process. His reasoning on sustainability was not vitiated by his erroneous approach to Policies C2 and RD1: William Davis Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin); [2013] PLSCS 242, Bloor Homes East Midlands v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), Dartford Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin) and Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin); [2015] PLSCS 61 applied.
Michael Rudd (instructed by Hawksley’s Solicitors, of Camberley) appeared for the claimant; Stephen Whale (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
Read a transcript of Wenman v Secretary of State for Communities and Local Government here
