England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham West Midlands B4 6DS
		7 April 2014

Mr Justice Hickinbottom:

Introduction

1. The Claimant is a residents' association which seeks to challenge the decision of the Defendant planning authority ("the Council") dated 10 July 2013, to grant planning permission to the Second Interested Party, for a ten-pitch caravan site on land known as Dalebrook Farm, Leicester Road, Earl Shilton, Leicestershire.
2. Both Interested Parties are Romani Gypsies. For the last 25 years (since Commission for Rational Equality v Dutton [1989] QB 783), Gypsies have been recognised as a distinct ethnic group. As a matter of domestic law, they are recognised as having a protected characteristic under the Equality Act 2010; and it is now well-established that, by virtue of the European Convention on Human Rights, the state has a duty to "facilitate the Gypsy way of life" for ethnic Gypsies (Chapman v United Kingdom [2001] EHRR 18, especially at paragraph 96), which way of life requires "special protection" (DH v Czech Republic (2008) 47 EHRR 3, especially at paragraph 182). There has been a long history of local authorities failing to provide Gypsy and Traveller sites, which I briefly described in R (Knowles and Knowles) v Secretary of State Work and Pensions [2013] EWHC 19 (Admin) at [5] and following, resulting in a policy imperative now to do so.
3. The grant of planning permission in this case was made following consideration of the application by the Council's Planning Committee at a meeting on 25 June 2013 when, in accordance with the advice and recommendation of an officer's report, it approved the proposed development.
4. The Claimant relies on three grounds. It is submitted that the officer's report, which the Committee essentially followed, was misleading as to the relevant national policy in two respects (Grounds 1A and 1B) and as to local policy (Ground 2). In addition, the Committee were not informed of the most up-to-date assessment of need for Gypsy and Traveller sites, which arguably showed a lesser need than that in the older assessment upon which the officer's report was based (Ground 3).
5. On 24 September 2013, His Honour Judge David Cooke granted permission to proceed on ground 1A but refused it on grounds 1B and 2. Ground 3 has only been raised subsequently. There are therefore before me the substantive application on Ground 1A, and applications for permission to proceed in respect of Grounds 1B, 2 and 3, the first two being by way of renewal. It has been sensibly agreed that the applications for permission be dealt with on a rolled-up basis.
6. At this hearing Richard Kimblin has appeared for the Claimants, and Timothy Leader for the Council. I thank them both for their focused and helpful submissions.

The Legal Principles

7. The relevant law in relation to these grounds is well-established and uncontroversial.
8. Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, the planning authority must have regard to all "materials considerations". What constitutes a material consideration is a matter of law: relevant policy is a material consideration. "The development plan" for an area is defined by section 38 of the Planning and Compulsory Purchase Act 2004 to include adopted local plans. Section 38(6) provides that:

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

Section 38(6) therefore raises a presumption that planning decisions will be taken in accordance with the development plan.

9. Planning decision-makers therefore have to have due regard to relevant policies; but they cannot do so unless they understand those policies. They must therefore proceed on the basis of a proper understanding of the relevant policies as properly construed, the true interpretation of such policies being a matter of law for the court. Where they have misunderstood or misapplied a policy, or failed to take reasonable steps to acquaint themselves with the information that will enable them to give proper informed answers to the material questions, that may found a challenge to their decision, if it is material, i.e. if their decision would or might have been different if they had properly understood and applied the guidance (see Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P&CR 86 at page 94 per Woolf J, R (MidCounties Co-operative Society Limited) v Forest of Dean District Council [2007] EWHC 1714 (Admin) per Collins J, and Tescos Stores Limited v Dundee City Council [2012] UKSC 13, at [17]-[23] per Lord Reed).
10. Whilst the planning decision-makers must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for them. The planning authority is entitled to give a material consideration whatever weight, if any, it considers appropriate, subject only to its decision not being irrational in the sense of Wednesbury unreasonable (Tescos Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G per Lord Hoffmann).
11. Each local planning authority delegates many of its functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. That is what happened in this case. Such a report usually also includes a recommendation as to how the application should be dealt with. An officer's report for a planning committee is not to be construed with the same exegesis as a statute. The questions to be asked by this court are whether the author properly identified the important planning issues to be considered and whether overall he fairly identified the material matters bearing upon those issues to enable the decision-makers in the committee to weigh the competing and public and private interest involved and come to an appropriately informed decision (R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15] and the cases referred to therein). In performing that function, the officers are also exercising their planning judgment. It is also to be borne in mind that reports are written by officers for members of planning committees, and that they are therefore addressed to a "knowledgeable readership", which can be presumed generally to know the area over which they operate and the planning regime (R v Mendip District Council ex parte Faber (20000 80 P&CR 500 per Sullivan J as he then was; see also Oxton Farms Samuel Smith Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106 per Pill LJ.
12. Absent any indication to the contrary, it can usually be assumed that a committee which agrees with an officer's recommendation, also agrees with that officer's reasoning: in particular, in those circumstances, the committee can be assumed to agree which the officer's analysis of relevant policies (R (Mevagissey Parish Council v Cornwall Council [2013] EWHC 3684 (Admin) at [43(iv)]).

The Relevant Policies

13. National planning policy has, since March 2012, largely been set out in the National Planning Policy Framework ("the NPPF"). In line with section 39 of the 1990 Act, paragraph 14 provides that.

"At the heart of the [NPPF] is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.

...

For decision-taking this means:

• approving development proposals that accord with the development plan without delay; and

• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

• specific policies in this Framework indicate development should be restricted."

14. "Sustainable development" is not specifically defined in the NPPF, but is usually defined terms of development which meets the needs of the present without the compromising ability of future generations to meet their own needs. It is said in paragraph 6 of the NPPF that the policies set out in paragraphs 18 to 219, taken as a whole, constitute the Government's view of what sustainable development means in practice for the planning system. "Sustainability" therefore inherently requires a balance to be made of the factors that favour the proposed development and those that favour refusing it, in accordance with the relevant and national local policies.
15. Paragraph 216 of the NPPF is also potentially relevant to this claim. It provides that, in addition to the adopted local plan, planning decision-takers may also give weight to relevant policies in emerging plans according to the stage of preparation, the extent to which there are unresolved objections to relevant policies, and the degree of consistency of the relevant policies in the emerging plan to the policies in the NPPF itself.
16. In respect of Gypsy and Traveller sites, there is national policy outside the NPPF (although to be read in conjunction with it), namely "Planning Policy for Traveller Sites" (March 2012) ("the PPTS").
17. The PPTS includes the following particular policies relevant to this claim:

"Policy B

11. Local planning authorities should ensure that traveller sites are sustainable economically, socially and environmentally....

Policy H

22. Local planning authorities should consider the following issues amongst other relevant matters when considering planning applications for traveller sites:

a) the existing level of local provision and need for sites

b) the availability (or lack) of alternative accommodation for the applicants

c) other personal circumstances of the applicant

d) that the locally specific criteria used to guide the allocation of sites in plans or which form the policy where there is no identified need for pitches/plots should be used to assess applications that may come forward on unallocated sites….

23. Local planning authorities should strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan. Local planning authorities should ensure that sites in rural areas respect the scale of, and do not dominate the nearest settled community, and avoid placing an undue pressure on the local infrastructure.

24. When considering applications, local planning authorities should attach weight to the following matters:

a) effective use of previously developed (brownfield), untidy or derelict land

b) sites being well planned or soft landscaped in such a way as to positively enhance the environment and increase its openness

c) promoting opportunities for healthy lifestyles, such as ensuring adequate landscaping and play areas for children

d) not enclosing a site with so much hard landscaping, high walls or fences, that the impression may be given that the site and its occupants are deliberately isolated from the rest of the community."

18. The PPTS also requires planning local authorities to set targets for traveller accommodation in line with objectively assessed need; and to plan sites to meet those targets over a reasonable time scale. The 2007 Leicestershire, Leicester and Rutland Gypsy and Traveller Accommodation Assessment 2006-16 ("the 2007 assessment") identified need – including, in the Council's area, a need for an addition 42 residential pitches (26 to 2011, and 16 from 2011-16), as well as additional transit and show people family pitches. That assessment also gave provisional figures for 2017 and beyond based upon percentage increases, but assumed that a further assessment of those more distant needs would be performed at a later date.
19. The Council is required by section 15 of the Planning and Compulsory Purchase Act 2004 to prepare a local development scheme. It published a Site Allocations and Development Management Policies Development Plan Document ("DPD") in December 2013. The draft of this document included proposals for Gypsy and Traveller sites; but those proposals proved highly contentious, prompting some 9,000 objections. Rather than delay approval and publication of the whole scheme, the Council therefore removed the Gypsy and Traveller site allocation from the documents altogether, with a view to preparing and approving a separate Gypsy and Traveller Sites DPD in due course.
20. The procedural proposals for that separate document were set out in the adopted Site Allocations DPD. It proposes to adopt such a document by October 2016. The first step (of eight) is to gather evidence and draft a scoping document. In pursuit of evidence gathering, and also to obtain more robust figures for the period after 2017, the Council commissioned a Gypsy and Traveller Accommodation Needs Study for its area, which it first received in January 2013 and in its final form in April 2013. On 11 September 2013, the Council's Executive resolved that that assessment "be adopted as an evidence base for local plan preparation". However, it restricted its authorisation to that particular use. No public consultation has, as I understand, yet taken place. There is not yet even a scoping document. The Council expects the Gypsy and Traveller Site DPD to be highly contentious.
21. In the meantime, the Council has no local plan for Gypsy and Traveller sites, save for Policy 18 of its Local Planning Framework Core Strategy (December 2009) ("CS Policy 18). Paragraph 4.59 states:

"It is important to provide for the housing needs of a range of specific groups including gypsies, travellers and travelling show people. Government policy emphasises the importance of assessing the accommodation needs of the specific groups and taking a strategic approach to meeting identified need."

This reflects the policy imperative of local authorities identifying sites for Gypsy and Traveller pitches, for which there is an identified need following years of failure in this regard to which I have already referred (see paragraph 2 above). CS Policy 18 then sets out the 2007 assessment figures for need up to 2017, and states, so far as relevant to this claim, that:

"Planning permission for new gypsy and traveller site will be granted providing the site is... located within a reasonable distance of local services and facilities including shops, GPs and schools, even if the site is not directly adjacent to the settlement boundary...".

There then follows a number of other additional criteria, including safe highway access, a capability of being assimilated in the surroundings being appropriate to scale of the nearest settlement, not causing unacceptable nuisance to existing neighbours and also design criteria.

The Claim

22. It is submitted on the Claimant's behalf that the decision to grant planning permission was unlawful on the following grounds.

Ground 1: There are two sub-grounds. First, Mr Kimblin submitted that the Planning Committee were misled as to the relevant national policy, in that the officer's report indicated that the policy in paragraph 23 of the PPTS (that new Gypsy and Traveller sites should be strictly limited in open countryside) did not apply unless the relevant local authority had identified sufficient sites to satisfy the identified need for such sites (Ground 1A). Second, it is said that the officer's report indicated, incorrectly, that the application site was sequentially preferable to a range of other sites (Ground 1B).

Ground 2: The Planning Committee were misled as to the relevant local policy, in that the officer's report indicated that CS Policy 18 created a presumption for approval.

Ground 3: The Committee proceeded on an incorrect basis, in that they failed to take into account the new and most up-to-date assessment of need for Gypsy and Traveller sites, which was arguably lower than the 2007 assessment upon which they worked.

Other grounds raised earlier have been abandoned. None of the grounds relied on in the pre-action protocol letter has survived. I need not say anything further about them, except to say that none appears to me to have had merit.

Ground 1A

23. I have already quoted Policy H, paragraph 23 of the PPTS (paragraph 17 above). Briefly, it provides that.

"Local planning authorities should strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan."

24. Mr Kimblin, for the Claimant, criticised the way in which the officer's report dealt with this policy. Having considered, at some length, the particular matters relevant to Gypsy sites set out in paragraph 22 of the PPTS (including the existing level of local provision and need for the site, the availability (or lack) of alternative accommodation for the applicant, and other personal circumstances of the applicant), the officer's report continued:

"Although paragraph 23 of the [PPTS] states that local planning authorities should strictly limit new traveller site development in open countryside, however it is considered this stance could only be taken once the Borough Council has identified sufficient site to satisfy the evidenced need. This should not be therefore used as a reason for refusal for this application."

Mr Kimblin submitted that that passage is difficult to follow; but the reader is left with the impression that the national policy only applies when the authority has identified sufficient sites to satisfy the identified need for Gypsy sites.

25. I do not find that submission compelling. I accept that the passage I have quoted could have been better put – for example, the "although" at the beginning and the "however" in the middle appear to have the same grammatical function, and the latter could and no doubt should have been omitted. But the middle "however" does show, clearly, that the sentence is comprised of two separate parts. The first, before the word "however", sets out, clearly and unequivocally, what the national policy is. The second part of the sentence, after the word "however" qualifies the first part. The question is, how?
26. Mr Kimblin submitted that it suggests that the policy itself is in some way qualified; but, on a fair reading of the report as a whole, I cannot agree. Although the sentence uses the impersonal ("… it is considered…"), it is in my view clear that that is a reference to the officer's own views. That is how he phrases such views elsewhere in the report: simply by way of example, see the bottom of page 89 of his report. The officer's report considered that the tipping factor in the planning exercise he conducted was the requirement to provide sites given the identified need, described in the draft summary reasons for approval as "paramount", i.e. in all circumstances, it had overriding weight. Here, in what I accept is a grammatically clumsy passage, the officer's report is simply saying that this strand of national policy should not be a reason for refusing the application, given the other policy considerations including vitally the need to house Gypsies and Travellers on sites. In other words, as Mr Leader submitted, it is a comment as to weight, a matter exclusively in the province of the officer and, in their turn, the committee. In the report read as a whole, the officer makes clear that need for such sites is deserving of very great weight; but also, in other regards, the development site is very strong in terms of sustainability. This is made clear, for example, in his conclusion on page 93 of the officer's report.
27. For those reasons this sub-ground, for which Judge Cook granted permission to proceed, fails.

Ground 1B

28. In the second sub-ground of Ground 1, Mr Kimblin focuses on the following passage in the officer's report:

"Whilst the application site is not previously developed, untidy or derelict, it offers the opportunity for a well-planned site on the outskirts of three settlements Barwell, East Shilton and Hinckley and in sustainability terms is there sequentially preferable".

Mr Kimblin submits that, from this, the Committee would or could have concluded that the application site was sequentially preferable to a range of other sites.

29. Judge Cooke refused permission in relation to this limb of Ground 1. In my view, he was right to do so. The passage I have quoted falls within the officer's consideration of sustainability. The reference at the beginning of the quoted passage is to paragraph 24 of the PPTS, under which the planning authority must attach weight to effective use of previously developed untidy or derelict land. The officer's report accepts that this site does not fall within those categories, but nevertheless he considers it sustainable. Mr Leade,r for the Council, submitted that the reference to sequential references was a typographical error, and an obvious one. I agree. The reference to "sequentially referable" – of course, a term of art in planning – has no place here. The discussion is not about sequential preferences at all, and the report does not suggest that there are any other sites which are sustainable and available, that, when set against the application site, would be less preferable. As Mr Leader put it, there were simply no other sites on the table.
30. As I have indicated, an officer's report is not to be construed like a statute. There is a tenet of statutory construction that all words must have been intended to have conveyed something; but there no such tenet with regard to an officer's report. For the reasons that I have given, I consider that the words at the end of the quoted passage simply to have been there in error; and it would have been obvious to the Committee members that that was the case.
31. For those reasons, like Judge Cooke, I do not consider this sub-ground to be arguable.

Ground 2

32. Judge Cook did not give permission for this ground either.
33. Mr Kimblin contends that the Committee were misled by advice in the officer's report that CS Policy 18 created a presumption in favour of Gypsy site development. The officer's report said:

"Policy 18 of the Adapted Core Strategy confirms the Council's commitment to provide residential and transit site gypsy pitches within the context of the policy's criteria and as such implies a presumption in favour of such development. This is generally consistent with the intentions of the [PPTS]."

However, Mr Kimblin submits, CS Policy 18 is merely permissive: permission may be granted only upon a valuation of the criteria set out. The officer's advice suggests to the contrary that there is a presumption in favour of permission: permission is to be presumed unless rebutted.

34. I am afraid I am unimpressed by that contention. I prefer instead Mr Leader's submission, that CS Policy 18 sets out the Council's approach to planning applications for Gypsy sites, by saying that permission will be granted providing the site satisfies a number of criteria, some in the alternative. The officer's report analyses the extent to which the application site complies with those criteria. The opening paragraph of the analysis, which I have just quoted, makes clear that the Council is committed to providing Gypsy sites "within the context of the policy's criterion [sic]"; and that if the context of the "presumption in favour of development." As such, that does not suggest a planning presumption in favour of any Gypsy site. On any proper reading, such a presumption arises – and only arises – if the application site satisfies the criteria and design guidance set out in CS Policy 18. The officer in due course goes on to conclude that "… the criteria listed within ... Policy 18 is considered to have been met".
35. In my view, the Committee were properly advised as to CS Policy 18, namely that it required a careful evaluation of the application site's overall performance against each criterion and, if those criteria were satisfied, then the application would comply with CS Policy 18; and that compliance would create a presumption in favour of development, of course subject to other material considerations tipping the balance in favour of refusal.
36. In refusing permission to proceed on the papers Judge Cooke succinctly said this:

"I do not consider the other alleged deficiencies of the report to raise an arguable case that members were misled. Policy 18 states a clear policy that sites will be permitted if they meet the criteria there set out. It is not misleading to say this implies a presumption in favour of such development."

In short, I agree.

37. For those reasons I consider Ground 2 to be unarguable.

Ground 3

38. The officer's report, and thus the Committee's consideration of the application, was made on the basis of the 2007 assessment of need. Those figures were incorporated into CS Policy 18. In 2013, the Council commissioned another assessment of need, which arguably showed that the need was less. On the basis of the 2007 assessment of need, 13 pitches were still required as not having been provided by the end of 2012 and an additional 16 pitches were required by 2017. In the new assessment, it was suggested that 10 pitches were required "now", with a further nine pitches required in the period 2012-17. Mr Kimblin submitted that the officer and the Committee erred in not taking this new assessment of need into consideration.
39. However, for the following reasons I do not consider it is arguable that the Committee erred in not taking this new assessment into account.
40. The new needs assessment appears to have been triggered by the requirement for a reassessment of need for Gypsy sites in the Council's area for the period after 2017. However, as Mr Kimblin submitted, it does have figures within it for the need to 2017, which appear to suggest that the previously assessed need may have fallen. However:

(i) The assessment data included in CS Policy 18 are clearly still a material consideration. Those data were undoubtedly properly examined and taken into account in the officer's report.

(ii) The figures in the new assessment are difficult to rationalise with the earlier assessment, and it does not explain the reasons for the fall.

(iii) The figures in the new assessment lack robustness. At the time of the planning decision in this case, the new needs assessment was a document within the Council; but it was still being considered by the Council's Executive, who had not approved it for any purpose. When they did approve it in September 2013 – some time after the decision in this case – they only considered the figures robust enough to be used for the purposes of the proposed plan, and expressly not for the purposes of decision-taking in individual applications. The DPD will of course be the subject of a considerable and extensive process before adoption, which will include public consultation. It is expected that it will give rise to a number of objections, including possibly objections to the database used. Furthermore, the DPD process will involve obligatory liaison with adjacent authorities to ensure that the figures across the area are correct. The Council's Executive therefore had proper cause for treating the new assessment with caution, and for not considering the figures to be sufficiently robust for the purposes of individual decision-taking.

(iv) Finally, even on the reading of the new data most advantageous to the Claimant, 10 pitches are needed for Gypsy and Travellers now, with an additional nine needed before 2017. There were no alternative sites on the table and this site, as I have indicated, was considered by the officer to be particularly strong on sustainability.

41. In all of those circumstances, I consider that the officer was certainly entitled not to provide Committee members with the additional data if indeed the officer knew or ought to have known about them. In any event, those data are of such weakness that I consider they would in any event be immaterial to the decision on this application, in the sense that, even if they had been provided to the Committee, there is no realistic possibility that they would have altered the decision to grant planning permission in this case.
42. For those reasons, leaving aside any submissions as to delay, which Mr Leader did not press today, I do not consider this ground to be arguable.

Conclusion

43. Consequently, for the reasons that I have given, I will refuse the substantive application for judicial review on Ground 1A; and I shall refuse all other applications before me for permission to proceed on the other grounds.