R (ON THE APPLICATION OF XY) (Claimant) v MAIDSTONE BOROUGH COUNCIL (Defendant) & THOMAS SMITH (Interested Party) (2016)

The claimant applied for judicial review of the defendant local authority’s decision to grant planning permission to the interested party for the change of use of land.

 

The application site formed part of a wider site which had been granted planning permission for the retention of a mobile home, a touring caravan and a barn subject to a condition that no more than one static residential caravan should be stationed on the site. The interested party subsequently sought planning permission for the change of use of the application site from grazing to residential for one caravan and one touring caravan. In granting permission, the planning committee relied on an officer’s report which concluded, inter alia, that the interested party was a gypsy.

 

The claimant submitted that the committee:

 

(1) failed to have regard to the planning status of nearby gypsy sites which were either in unlawful use or only subject to temporary planning permission;

 

(2) failed to take into account that, in granting planning permission for the wider site, it had concluded that more than one caravan on that overall site would have an unacceptable visual impact;

 

(3) failed to take reasonable steps to obtain relevant information before concluding that the interested party was a gypsy;

 

(4) failed to have regard to the evidence base for the emerging local plan, which had ruled out allocating the wider site for development as a gypsy and traveller site;

 

(5) failed to treat the application as a “Schedule 2 application” for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 reg.7.

 

HELD: (1) It was material to the local authority’s assessment of the impact that the change of use would have on the character of the area that nearby sites were either in unlawful use and therefore susceptible to enforcement action or only had the benefit of temporary permission. The character of the area could therefore change if the local authority took action or if the temporary permission expired. However, the officer’s report had not included that information. The possibility of enforcement action being taken was a matter that the committee should have been able to consider for itself. Since the relevant information had not been in the officer’s report, the committee had not been able to consider the issue. The committee had been significantly misled about material issues as it was invited to make a decision to grant planning permission in reliance on matters that were potentially temporary in nature and that went to a key issue in the decision, namely the extent to which the development would harm the character of the area (see paras 19, 21-22 of judgment).

 

(2) The officer’s report had not referred expressly to the condition for granting planning permission in respect of the wider site, nor therefore to the reason for attaching the condition. Nevertheless, the committee knew from the report that the impact on the rural character of the area was a key issue. The failure to inform the committee of the condition did not cross the line into significantly misleading it on a material matter. It did not need to know in order to arrive at a lawful judgment that the officer who had granted planning permission for the wider site had decided that a condition restricting the number of caravans was necessary in the interest of visual amenity (paras 26-27).

 

(3) The issue was whether the local authority’s inquiry as to gypsy status was so inadequate that no reasonable planning authority could suppose that it had had sufficient material on which to grant planning permission and impose conditions, R. (on the application of Hayes) v Wychavon DC [2014] EWHC 1987 (Admin), [2015] J.P.L. 62 applied. The amount of detail to be included in a report to a committee was a matter for the officer. In the instant case, the officer had referred to the correct definition of gypsy status and concluded that the interested party was a gypsy. In a borough where there had been numerous applications for planning permission for gypsy sites, it was unreasonable to assume that the officer was unaware of the meaning of the phrase “a nomadic habit of life”, R. v South Hams DC Ex p. Gibb [1995] Q.B. 158 considered. The surrounding circumstances supported the view that the interested party was a gypsy. The committee was entitled in those circumstances to rely on the officer’s view, and accordingly it had sufficient material on which to conclude that the interested party was a gypsy (para.33).

 

(4) Given that permanent planning permission had been granted for the wider site, and given that the sustainability appraisal for the emerging plan had recognised that most of the gypsy and traveller sites in the borough were poorly located in relation to transport and services, it could not be said that the committee had been significantly misled on the issue of sustainability by the absence of any reference to the evidence base for the emerging local plan. The local members would have been aware of local transport provision and where local facilities were to be found. They were well placed to decide whether the application site was in a sufficiently sustainable location to justify planning permission (para.40).

 

(5) The local authority had acted reasonably in determining that the application was not a Schedule 2 application. The application did not in any meaningful way form part of one project with the other pending applications on the nearby sites (para.50).

 

(6) The claim succeeded on the first ground only. It was appropriate to exercise discretion to quash the planning permission because there was a real possibility that if the committee had known of the unlawful nature of the nearby sites and of the temporary permission, it would have reached a different conclusion (para.52).

 

Application granted

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