Development – Material change of use – Travelling showmen seeking planning permission for change of use of land for permanent winter quarters – Councils refusing application – Planning inspectors striking balance to protect open countryside – Claimant applying for judicial review – Whether inspectors’ decisions Wednesbury unreasonable – Applications dismissed
The claimants in both cases were travelling showmen who made their living by holding fairs in their respective local areas. National planning policy recognised that travelling show people had difficulty in securing sites to which they could return between fairs or at the end of the season. Despite the issue of government Circular 22/91, which provided guidance to local planning authorities on helping showmen to overcome the difficulties in obtaining sites with planning permission, it seemed that many local authorities were not properly considering the needs of such people.
The claimants purchased land in their respective local areas (the appeal sites). Although the land lay in open countryside, the appeal sites were not designated as green belt or as areas of outstanding natural beauty or special landscape.
The claimants applied for planning permission for change of use of the appeal sites as permanent quarters for travelling showmen. When the second defendant councils refused those applications, the claimants appealed to the first defendant. Meanwhile, they continued their search for alternative sites and, in the absence of anywhere else to go, they occupied the appeal sites in breach of planning control.
Inspectors appointed by the first defendant accepted that no suitable alternative sites were available to meet the claimants’ need for accommodation and that the prospect of finding suitable sites on the open market was a remote one. However, they concluded that the change of use would have a significant visual effect on the open countryside. Moreover, because the sites did not have access to services and facilities other than by car, sustainability considerations weighed materially against allowing the appeals. The claimants applied for judicial review under section 288 of the Town and Country Planning Act 1990, contending, inter alia, that the decisions were Wednesbury unreasonable.
Held: The applications were dismissed.
On balance, the first defendant had been entitled to decide that the potential harm to the countryside outweighed the need for accommodation, even though successive inspectors had concluded that the claimants had done all that could reasonably be expected of them and that there was no evidence of suitable alternatives.
The balancing exercise that had to be carried out was a matter of planning judgment for the inspectors, which could not be impugned. The fact that different inspectors might have allowed the appeals did not mean that the manner in which the inspectors in the instant cases had exercised their planning judgment was Wednesbury unreasonable.
It could not be suggested that, merely because there was an established need for accommodation and no alternative site had been identified, the inspector was obliged to grant planning permission for the site that happened to be in front of him. In each case, a balance had to be struck between the advantages of meeting the claimants’ need and the harm to other policy objectives, such as protecting the open countryside.
Paul Brown (instructed by Leigh Day & Co) appeared for the claimants; John Litton (instructed by the Treasury Solicitor) appeared for the first defendant; Christopher Young (instructed by the legal departments of Forest of Dean District Council and North West Leicestershire Distrcit Council) appeared for the second defendants.
Eileen O’Grady, barrister
