Town and country planning – Gypsies – Material change of use – Exception – Claimant local authority challenging decision of inspector appointed by defendant secretary of state to grant permission for change of use of land to private gypsy and traveller site for one mobile home – Whether inspector erring in law – Application granted
The claimant local authority brought a claim under section 288 of the Town and Country Planning Act 1990 challenging the decision of a planning inspector appointed by the first defendant secretary of state to grant an application by the second defendant seeking permission for the change of use of land to a private gypsy and traveller site for one mobile home and associated development.
The inspector considered that the material change of use did not constitute inappropriate development because it fell within the exception in paragraph 150(e) of the National Planning Policy Framework which provided for “material changes in the use of land (such as changes of use for outdoor sport or recreation, or for cemeteries and burial grounds)”.
The claimant submitted that the inspector erred in law in his application of green belt policy in the NPPF and Policy E of the Planning Policy for Traveller Sites (PPTS) which provided: “Traveller sites (temporary or permanent) in the Green Belt are inappropriate development”.
The first defendant conceded that there was an error of law and that the decision should be quashed. However, the second defendant sought to uphold the decision, arguing that the first defendant’s concession was not only wrong but led to discrimination towards gypsies and travellers.
Held: The application was granted.
(1) The interpretation of planning policy was solely a question of law for the court requiring interpretation of the terms of the policy. Questions of the value or weight to be attached to that policy in resolving the question of whether development was in accordance with the development plan were matters of judgment for the decision-maker.
The task of interpretation of the meaning of the planning policy was not to be undertaken as if the planning policy were a statute or a contract.
The approach had to recognise that planning policies would contain broad statements of policy which might, superficially, conflict and require to be balanced in ultimately reaching a decision.
Planning policies were designed to shape practical decision-taking and had to be interpreted with that practical purpose clearly in mind. Further, they had to be applied and understood by planning professionals and the public for whose benefit they existed and were primarily addressed to that audience.
(2) For the purposes of interpreting the meaning of the policy it was necessary for the policy to be read in context which would include its subject matter and also the planning objectives which it sought to achieve and serve.
The context would also be comprised by the wider policy framework within which the policy sat and to which it related. That framework would include, for instance, the overarching strategy within which the policy sat.
Policies would very often call for the exercise of judgment in considering how they applied in the circumstances of the decision to be taken. It was of vital importance to distinguish between the interpretation of policy (which required judicial analysis of the meaning of the words comprised in the policy) and the application of the policy which required an exercise of judgment within the factual context of the decision by the decision-taker: Canterbury City Council v Secretary of State for Communities and Local Government [2018] PLSCS 115; [2019] PTSR 81 followed.
(3) Paragraph 150 of the NPPF listed other forms of development which might be considered not inappropriate.
That included material changes of use of land under paragraph 150(e). In the present case, it was clear that the inspector erred in law in the decision letter.
At its most simple, he failed to take into account paragraph 4 of the NPPF which stated in terms that it had to be read with the PPTS.
The PPTS was clear that the stationing of caravans for a travellers’ site was inappropriate development in the green belt. Therefore, when the inspector found the use was not inappropriate, by reason of his reading of paragraph 150(e), he either failed to take into account a material consideration or materially misdirected himself on the interpretation of policy. The error was manifest.
Further, there was no doubt that residential uses did not fall within paragraph 150(e) in any event. One would normally expect a list which started with the words “such as” to be a list which took its flavour or extent from the examples given. If it was simply an open-ended category then it was not clear why examples would be given at all.
(4) Originally there was no provision for changes of use for outdoor sport or recreation, or for cemeteries and burial grounds. That led to the decisions in Fordent v Secretary of State for Communities and Local Government [2013] PLSCS 223; [2014] 2 P&CR 12 and Timmins v Gedling Borough Council [2016] PLSCS 67; [2016] 1 All ER 895 where it was held that material changes of use of land to use for outdoor sport and recreation, and to use for a cemetery, were “inappropriate development”, on the basis that they did not come within any of the categories of “not inappropriate development”.
In this case, the background documents showed beyond any doubt that the purpose of paragraph 150(e) was to deal with the problem thrown up by Timmins, and not to open up a broad category of change of use where the only limitation was that there was no impact on openness and no conflict with the purposes of the green belt.It seemed to be highly unlikely that the defendant would have widened the category of not inappropriate change of use in the green belt to cover residential changes of use without making that absolutely clear.
Any sensible reading of the context could only lead to the conclusion that the uses permitted were to be read as being very closely aligned to the examples given.
(5) In the circumstances, the discrimination argument did not arise. Residential changes of use did not fall within paragraph 150(e) and therefore there was no discriminatory treatment of gypsies and travellers by the application of the PPTS.
Daniel Kolinsky KC and Annabel Graham Paul (instructed by South London Legal Partnership) appeared for the claimant; Hugh Flanagan (instructed by Government Legal Department) appeared for the first defendant; Stephen Cottle (instructed by Community Law Partnership) for the second defendant.
Eileen O’Grady, barrister