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

The court held that the Inspector had correctly interpreted and applied Core Strategy Policy CP13 as a two-stage test: (1) an established general need for pitches and (2) a site-specific need to be located within the National Park. The Inspector’s factual findings that the claimant demonstrated a general need but not a locational need were lawful and adequately reasoned. The Inspector was entitled to attach substantial weight to the policy conflict and to the landscape harm. The Inspector also lawfully considered human rights (Article 8) and the public sector equality duty, concluding that the claimant’s circumstances did not require an absolute or exceptional departure from planning policy. Finally, the Inspector lawfully addressed the question of a temporary permission in the light of the Planning Policy for Traveller Sites five-year supply requirement and reasonably concluded other considerations did not outweigh the policy and environmental harm.

Background and parties: The claimant, a Romany Gypsy, sought planning permission for a single-pitch Gypsy site on land he owned in the New Forest National Park. The New Forest National Park Authority refused planning permission; an appeal was allowed, that grant was quashed on a section 288 challenge and the matter was re-determined at a public inquiry before an Inspector. The Inspector dismissed the appeal. The claimant challenged that decision in this judicial review.

Nature of the claim and relief sought: The claimant advanced five grounds of legal challenge to the Inspector's decision, essentially alleging (1) misinterpretation and misapplication of policy CP13 of the Core Strategy (claimed imposition of an incorrect test), (2) error in finding the claimant did not satisfy CP13, (3) unlawful weight given to CP13 which effectively frustrated Gypsy site provision, (4) inadequate respect for Article 8 and the Equality Act 2010 public sector equality duty and mis-evaluation of conventional housing as an alternative, and (5) failure to give significant weight to the lack of a five-year supply of traveller sites when refusing a temporary permission.

Issues for the court:

• Whether the Inspector correctly interpreted Policy CP13;
• Whether the Inspector’s factual conclusions on need and the weight he attached to policy and other considerations were lawful;
• Whether Article 8 and the public sector equality duty were properly considered and applied;
• Whether the Inspector lawfully treated the lack of a five-year supply as a significant material consideration when deciding on a temporary permission.

Court’s reasoning and conclusions: The court endorsed the two-stage interpretation of CP13 given by the earlier Deputy High Court Judge and found the Inspector adopted that correct test. The Inspector’s factual findings — that the claimant showed a general need but not a site-specific need to be in the National Park — were within the fact-finding margin of judgment and adequately explained in the decision. Weight is a matter for the decision-maker and the Inspector lawfully attached substantial weight to the policy conflict and landscape harm, explaining why restricted provision in a National Park was justified by national policy. On Article 8 and equality issues, the court found that the Inspector carried out a nuanced assessment: he recognised the claimant’s cultural preferences but relied on evidence that the claimant had previously maintained a bricks-and-mortar base and could realistically do so again as a base for travelling; accordingly the interference with rights and proportionality were lawfully addressed and the equality duty discharged. With respect to temporary permission and the PPTS five-year supply requirement, the Inspector had expressly treated the lack of a five-year supply as a significant material consideration but reasonably concluded that a time-limited permission would not alter the core planning and landscape balance in favour of the proposal. Overall the decision contained adequate reasons and no legal error was identified.

The application is dismissed. The court held that the Inspector had correctly interpreted Policy CP13 as a two-stage test, made rational and adequately reasoned factual findings that the claimant demonstrated a general but not a site-specific locational need, lawfully gave weight to the development plan and landscape harm, properly addressed Article 8 and the public sector equality duty, and reasonably treated the lack of a five-year supply when considering a temporary permission.

Initial planning application refused by the New Forest National Park Authority (13 August 2012); planning appeal allowed by an Inspector (24 July 2013); that allowance was quashed on a section 288 challenge heard by Mr Timothy Straker QC (Deputy High Court Judge), leading to a re-determination by the Secretary of State and a fresh inquiry; the subsequent Inspector’s dismissal of the appeal was the subject of this High Court judicial review ([2015] EWHC 3001 (Admin)).