Town and country planning – Planning permission – Gypsy site – Appellant local authority granting planning permission to continue using site as residential gypsy site – Respondent neighbour obtaining judicial review – Appellant appealing – Whether appellant having sufficient evidence of children on site to justify conclusion that their needs outweighed identified harm – Appeal allowed
A site known as Dollar Park, Baglitt Road, Holywell, Flintshire, was first occupied by the interested party as a gypsy encampment in March 2007 and an application for planning permission was initially refused and an enforcement notice issued. The interested party’s appeal was dismissed but, before the expiry of the enforcement notice, there was a further application for planning permission. The application was refused but, in 2011, the interested party obtained temporary planning permission for five years to use the site as a residential caravan site.
In granting a further application in 2016, the appellant accepted that the proposal would result in harm to the character of the area and the setting of a nearby listed building, Glyn Abbot, which was owned by the respondent; and would thus be contrary to various policies in the development plan. However, as there was an unmet need for gypsy sites in Flintshire, to refuse permission would make the families (including a number of children) currently occupying the site homeless, they would be itinerant and would have to pitch their caravans on the roadside without any base to access healthcare and education. In those circumstances, bearing in mind that the best interests of children were a primary consideration, despite the identified harm, the appellant accepted the recommendation of its planning officer that planning permission should be granted for a further period of five years.
The respondent applied for judicial review of that decision. A deputy judge found that the appellant had erred in law by granting planning permission without having ascertained and evaluated the best interests of the children who lived on the site. On that ground, he allowed the judicial review and quashed the appellant’s decision: [2017] EWHC 874 (Admin); [2017] PLSCS 91. The appellant appealed.
Held: The appeal was allowed.
(1) In the absence of contrary evidence, where a planning committee adopted the recommendation in an officer’s report, it was a reasonable inference that members of the committee followed the reasoning in the report. There was no contrary evidence in the present case. The decision whether the available information was sufficient to enable an authority to determine that planning permission should be granted was a decision involving planning judgment with which the court would only interfere on public law grounds.
(2) In the present case, the officer’s conclusion that, because of the lack of alternatives, if planning permission were not granted, the site residents would be required to live roadside, was unassailable. It was obvious that it was in the best interests of the children to remain on the site, rather than live by the roadside. The issue then became one of proportionality: was interference with the article 8 rights of the various individuals who occupied the site, including the rights of the children, proportionate to the countervailing interests, particularly the public interest in avoiding the identified planning harm. Although the available evidence as to the circumstances of the children was limited, the planning committee was aware that there were eleven children, some of whom were of primary school age and attended the local primary school. For the families resident on the site there were no alternatives for accommodation so that, if planning permission were not granted, all of the families, including the children, would have to live roadside, the children would lose the base from which to access schools and four adults who were having medical treatment would have no base from which to access medical facilities. On all of the available evidence, the officer was clearly entitled to conclude that the best interests of the children, together with the other factors in favour of the grant of temporary planning permission, outweighed countervailing considerations including the planning harm she had identified. The preconditions were satisfied, the officer having been satisfied that there was an unmet need, there was no available alternative gypsy and traveller site provision in the area and there was a reasonable expectation that new sites were likely to become available in the area at the end of a five-year period, because the local development plan (with gypsy and traveller site allocations) was due to be adopted in 2019. There was therefore an expectation that the planning circumstances would change in a particular and identified way within a five-year period.
(3) There was no evidence that further enquiries would or might disclose some external benefactor who would ensure that the children would not have to live roadside. The officer could not reasonably have been required to make investigations that could only have further endorsed the planning decision which she already considered was appropriate. In the circumstances, it was not necessary as a matter of law or in practice for the officer or committee to carry out further enquiries before recommending the grant of temporary planning permission and granting such permission on the basis that the identified planning harm was outweighed.
(4) The deputy judge had erred in his conclusion that, given the evidence with regard to the children, it was Wednesbury unreasonable for the officer to recommend the grant of planning permission and for the planning committee to resolve to grant such permission on the basis that the best interests of the children, together with the other factors in favour of the grant of planning permission, outweighed countervailing considerations. The officer and committee had acted entirely lawfully. Accordingly, the judge’s order would be quashed and the judicial review would be dismissed, leaving in place the grant of temporary planning permission.
John Hunter (instructed by Flintshire County Council Legal Services) appeared for the appellant; Kevin Leigh (instructed by Jayes Collier LLP) appeared for the claimant; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Jayes) v Flintshire County Council
