Planning applications – Gypsy sites – Applications recovered by first defendant secretary of state – Planning permission refused – Whether first defendant required to refer back to parties before issuing decision in light of changes in government planning policy – Whether breach of Town and Country Planning (Inquiries Procedure) (England) Rules 2000 or principles of natural justice – Whether adequate reasons given for decision – Claims dismissed
Each of the claimants was a member of the Irish traveller community who occupied a caravan on green belt land. In the first case, planning permission for the use of the land as a traveller site was refused by the second defendant council. In the second, the claimant had the benefit of a temporary planning permission but an application for a permanent permission was refused by the local planning authority (LPA). The first defendant secretary of state recovered both applications for his own determination on the ground that they involved green belt considerations. Following a public inquiry in each case, and a report by a planning inspector, the first defendant dismissed the applications save that he granted a temporary, two-year planning permission to the second claimant. Although this was contrary to the recommendation of the inspector that he grant a permanent permission, the first defendant considered that a permanent permission would be premature pending the adoption of the LPA’s development plan document on gypsy site allocation.
The claimants brought proceedings to quash those decisions under section 288 of the Town and Country Planning Act 1990. Both claims raised issues as to the implications of: (i) the first defendant’s purported revocation of all regional spatial strategies (RSSs) in July 2010, and their subsequent reinstatement in November 2010 after the revocation was found to be unlawful and was quashed (see Cala Homes (South) Ltd v Secretary of State for Communities and Local Government (No 1) [2010] EWHC 2866 (Admin); [2010] PLSCS 288 and (No 2) [2011] EWHC 97 (Admin); [2011] PLSCS 45; [2011] EWCA Civ 639; [2011] 34 EG 68); and (ii) his announcement, in August 2010, of his intention to withdraw the national planning guidance for gypsy and traveller sites in Circular 01/2006.
The claimants contended that the failure of the secretary of state to invite further representations before issuing his decision meant that they had been unfairly deprived of the opportunity to make representations on those matters, contrary to the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 and the principles of natural justice. They also submitted that the first defendant had given inadequate reasons for his decision.
Held: The claims were dismissed.
(1) In each case, the first defendant had considered whether to refer back to the parties, but had decided that it was not necessary. Under para 17(5) of the 2000 Rules, the first defendant was only required to refer back to the parties before reaching a decision if he was “disposed to disagree with a recommendation made by the Inspector” because of some “new evidence or new matter of fact (not being a matter of government policy)”. In the case of the first claimant, the first defendant had not disagreed with the inspector. In the case of the second claimant, the first defendant had disagreed with the inspector on whether the planning permission should be permanent or temporary but that disagreement had not arisen because of any new matters; instead it related to the first defendant’s view that it would be premature to grant a permanent permission pending the adoption by the LPA of their development plan document on site allocations. Accordingly, there had been no breach of the 2000 Rules. Nor had there been any breach of the wider principles of natural justice. It was hard to see what meaningful representations could have been put forward on the applicants’ behalf that would have made a difference. The decision of the first defendant not to refer back to the parties was not unreasonable in all the circumstances of the case: Rea v Minister of Transport (1984) 48 P&CR 239 applied.
(2) The first defendant had been entitled to take into account, as material considerations, his decisions to revoke RSSs and to withdraw Circular 01/2006. The weight that he gave to those considerations was a matter for him: Cala Homes (No 2) applied. In the first claimant’s case, he had been entitled to conclude that there was no reliable indicator of current unmet need for gypsy sites in the area. Although he had given significant weight in the balancing exercise to the lack of availability of alternative sites, he had been entitled to conclude that that lack, together with other significant factors in favour of the appeals, did not outweigh the harm to the green belt. Nor had the first defendant erred in his approach to national planning policy in PPS3, concerning the need for a favourable approach to planning applications for housing where LPAs could not demonstrate an up-to-date five-year supply of deliverable sites. That guidance related to built accommodation rather than the provision of gypsy sites: Taylor v Secretary of State for Communities and Local Government [2012] EWHC 684 (Admin) and Smith v Secretary of State for Communities and Local Government [2012] EWHC 963 (Admin); [2012] PLSCS 65 applied. Taking different approaches to the provision of built accommodation and the provision of pitches for gypsies and travellers did not offend against any relevant anti-discrimination legislation.
(3) In the second claimant’s case, the first defendant had been entitled to refuse a permanent permission on the ground of prematurity and had given adequate reasons for disagreeing with the inspector on that matter. Prematurity was not a legal concept, but was essentially a matter of planning judgment and planning policy for the decision-maker. A decision-maker could postpone a decision relating to the grant of permission for a proposed development until a relevant emerging local planning policy had been settled. The first defendant had given sufficient reasons for his view that the possible grant of a permanent permission for a gypsy caravan site was better determined via the emerging core strategy process, in which the LPA was committed to allocate sites, rather than through an individual application for planning permission at that time. He had been entitled to differ from the inspector in concluding that the LPA’s planned timetable for the adoption of its policy could be maintained.
Alan B Masters (instructed by Davies Gore Lomax LLP, of Leeds) appeared for the first claimant; Michael Rudd (instructed by Bramwell Browne Odedra Solicitors, of Chesham) appeared for the second claimant; James Maurici (instructed by the Treasury Solicitor) appeared for the first defendant; Robin Green (instructed by the legal department of Wycombe District Council) appeared for the second defendants; Rochford District Council, the local planning authority in the second claimant’s case, did not appear and were not represented.
Sally Dobson, barrister
