Town and country planning – Planning permission – Gypsies – Claimant applying for judicial review of decision of defendant local authority to grant conditional planning permission for gypsy pitches – Whether defendant failing properly to apply local plan policy setting out criteria for traveller sites – Application dismissed
The claimant was the registered proprietor of the Four Seasons Hotel, at Dogmersfield Park, Dogmersfield, Hampshire which was located in a Grade I listed building, and its grounds constituted a Grade II listed registered park and garden. To the south-west, in the parish of Odiham, but within the boundary of the park lay Farnham Lodge. The interested party applied for planning permission for a change of use of part of the land belonging to Farnham Lodge for residential purposes for two gypsy pitches, consisting of a mobile home, a touring caravan and a utility/dayroom, each together with the formation of hardstanding.
The defendant was the local planning authority with a responsibility for the area. The defendant granted permission subject to a number of conditions. It was satisfied that there was a need by reference to the Gypsy and Traveller Accommodation Assessment (GTAA) and by the assessment that there was a need in the authority area for sites for travellers, show people and gypsies.
The claimant applied for judicial review of that decision contending that the defendant failed properly to apply policy H5 of the Hart Local Plan which set out criteria against which planning applications for traveller sites would be determined.
The question was whether the policy required those seeking planning permission for a gypsy site in the countryside themselves to demonstrate a personal need, or whether a general need for further gypsy and traveller sites was capable of satisfying that part of the policy.
Held: The application was dismissed.
(1) It was well established that the construction of planning policy was a matter of law for the court. A policy statement was to be interpreted objectively in accordance with the language used, read in its proper context. The policy was to be construed as it stood, by reference to the words used in it. It was unhelpful to members of the public as well as to decision-makers if it was suggested that the policy could be understood only by reference to other documents or to its history: R (Phides Overseas Ltd) v Secretary of State for Communities and Local Government [2015] EWHC 827 (admin) considered.
There were two aspects to the phrase under consideration. One was the requirement for a need. The other was that the applicant could demonstrate the need. The requirement for a need had the effect of imposing a burden of proof. If there was doubt about the matter, the application would be refused: it was for the applicant to demonstrate the need, not for anybody else to show that there was no need. But if there was a need, the application might be granted, whatever the source of the information about the need. It would not be sensible for an application to be subject to mandatory refusal as a consequence of non-compliance with policy H5(a) if the need were clear. If the need had been demonstrated by other material, it would be absurd to require the applicant to go through the process again.
(2) What had to be shown was a need for the development. The applicant has to show that there was a need, not that he (or she) had a need. However, it did not follow either that there was no difference between the consideration of applications for sites in the countryside or elsewhere, or that developments in the countryside were not restricted and thus that the policy did not respect the special nature of open countryside as required by paragraph 25 of the Planning Policy for Traveller Sites.
The word “need” itself “had a protean or chameleon-like character”. Both characteristics were of importance in understanding the meaning of policy H5(a). The need for gypsy sites within the defendant’s area was a finite and quite limited need and came nearer to being satisfied in general by every grant of planning permission for such a site. The policy itself was supposed to be effective for some years into the future, and the GTAA set out the needs until 2034, as assessed in 2020. The concept of the “need” for gypsy sites would change over that period: R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567; [2014] 2 EGLR 98; [2014] EGILR 35 considered.
(3) It might be that at the present time the need for such developments was obvious: it was apparent from the figures in the GTAA. As time went on, and more sites within the district obtained permission, the need would reduce. There would come a point where any application for a site in open countryside would need to be considered in the light of any existing other plans for sites which might reduce the “need” for that under consideration. Finally, if the defendant fulfilled its duty by granting permission for sufficient sites to meet the identified needs, a site in the open countryside would only be permitted if the application showed the need for an additional site at the very place proposed. The process of consideration would thus change over time but at each point it would be the same wording that was applied; it was the need that would have changed.
(4) The overall consequence in the context of some of the examples given at the hearing was that policy H5(a) interpreted in that way allowed permission to be granted for sites in the countryside more freely when there was a general need, and less freely when the general need had been satisfied. The local authority itself could reduce the availability of sites in the countryside by providing sites in other places. That was a coherent and sensible result, with no inconsistencies or contradictions.
Therefore, on its true construction policy H5(a) was capable of being satisfied if the local planning authority considered that there was a need for gypsy sites which the proposed development would help to meet. It followed that the decision under challenge was not unlawful.
Andrew Fraser-Urquhart KC (instructed by Howes Percival LLP) appeared for the claimant; Douglas Edwards KC (instructed by Hart District Council Shared Legal Services) appeared for the defendant; Michael Rudd (instructed by Fulchers Solicitors) appeared for the interested party.
Eileen O’Grady, barrister
