Whitcher v Secretary of State for Communities and Local Government & Anor

Policy CP13 required a two-stage assessment: an established general need for traveller pitches and a site-specific need for the proposed site to be located within the National Park. Family or historical connections alone might not establish the second requirement. The interpretation of planning policy is a legal question, but its application and the weight given to material considerations are matters for the planning decision-maker. In assessing a Gypsy applicant’s Article 8 rights, conventional housing cannot automatically be treated as an equivalent alternative. The decision-maker must consider the applicant’s cultural identity, nomadic lifestyle and the factual circumstances. A failure to maintain a five-year supply of sites is a significant material consideration, but may be outweighed by substantial policy and environmental harm.

The claimant, a Romany Gypsy, sought permission for a single-pitch site in the New Forest National Park. An appeal against refusal was initially allowed, but that decision was quashed on a challenge under section 288 of the Town and Country Planning Act 1990 after the policy had been misconstrued. On redetermination, the Inspector dismissed the appeal, finding that the claimant had demonstrated a general need but not a need for the site to be located within the National Park.

The claimant challenged the redetermination on grounds concerning the construction and application of Policy CP13, the weight given to policy harm, Article 8, the public sector equality duty and the absence of a five-year supply of traveller sites.

1. Application dismissed. The Inspector had correctly interpreted Policy CP13 as requiring two elements: an established general need for traveller accommodation and a need for the particular site to be located within the National Park. The claimant’s family and historical connections with the area did not, on the evidence, establish the required locational need. The Inspector’s factual assessment was rational and adequately reasoned.
2. The interpretation of planning policy is a question of law for the court, but the application of correctly interpreted policy, the assessment of facts and the weight given to material considerations are matters for the planning decision-maker: [2012] UKSC 13; [1995] 1 WLR 759. The court must not re-determine the planning merits.
3. A restricted policy for traveller sites in a National Park was a legitimate planning tool. The Inspector was entitled to attach substantial weight to the harm arising from conflict with Policy CP13, together with significant landscape harm.
4. Article 8 required careful consideration of the claimant’s Gypsy identity, nomadic lifestyle and aversion to conventional housing. The Inspector did not treat conventional housing as requiring the claimant permanently to abandon his lifestyle. He found, on the particular facts, that it could provide a base from which the claimant could continue to travel. That fact-sensitive assessment was materially different from the circumstances in R (on the application of Clarke) v Secretary of State for Transport Local Government and Regions, [2002] EWCA Civ 819, and was lawful. The reasoning also discharged the public sector equality duty.
5. The absence of a five-year supply of traveller sites was expressly recognised as a significant material consideration under paragraph 25 of the PPTS. It did not require temporary permission where the Inspector reasonably concluded that the locational need would remain absent and the harm would not be outweighed.
6. The Inspector’s reasons were adequate and intelligible. They addressed the principal controversial issues and disclosed no error of law. The application was dismissed.

An earlier appeal against refusal of planning permission was allowed. That decision was subsequently quashed on a section 288 challenge, and the appeal was remitted for redetermination. On redetermination, the Inspector dismissed the appeal. The present application challenging that decision was dismissed.