Wenman v The Secretary of State for Communities and Local Government & Anor

In a challenge under Town and Country Planning Act 1990 section 288, the court may correct errors of law but cannot reconsider planning merits. Traveller accommodation may constitute housing for the purposes of section 6 and paragraph 49 of the NPPF, although traveller-site supply must not be double-counted with general housing supply. A general countryside restriction may be a policy for the supply of housing; environmental and design policies are not necessarily so. An out-of-date housing-supply policy need not be wholly disregarded, but the inspector must explain what weight is given to its relevant aspects. The paragraph 14 balance requires asking whether adverse impacts significantly and demonstrably outweigh benefits. The decision was quashed because the inspector misclassified Policy C2, mishandled Policy RD1 and reversed the paragraph 14 test.

The claimant, a Romany gypsy, sought permission for a residential gypsy pitch involving a mobile home, touring caravan, hardstanding and ancillary facilities. Waverley Borough Council refused permission. An inspector dismissed the claimant’s appeal, finding substantial and unacceptable harm arising from the site’s location and appearance.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision. He alleged errors in the treatment of paragraph 49 and paragraph 14 of the NPPF, and argued that the inspector had relied improperly on earlier applications. Ground 2 concerning the best interests of the child was abandoned. The issues included whether traveller accommodation was within the NPPF’s housing provisions, how out-of-date policies should be treated, and whether the decision letter applied the correct planning balance.

1. Claim allowed and decision quashed. The appeal was remitted for reconsideration by a different inspector.

2. The challenge under section 288 of the Town and Country Planning Act 1990 is governed by ordinary judicial review principles. The court may correct legal misdirection, irrationality, failure to consider relevant matters or procedural impropriety. Planning judgment and the weighing of competing considerations remain matters for the decision-maker: Seddon Properties v Secretary of State for the Environment (1978) 42 P & CR 26 and Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74.

3. The PPTS supplements the NPPF. Much of section 6 of the NPPF applies to all accommodation used as homes, including mobile homes and caravans. Traveller accommodation is a species of housing for housing-needs assessment. Paragraph 49 therefore may be relied upon in principle by applicants for mobile-home or caravan permission, but traveller pitches must not be counted again within the general five-year housing supply.

4. Applying South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin), Policy C2 was a general restriction on open-country development and therefore a policy for the supply of housing. The inspector erred by treating it otherwise. Policies D1 and D4 were environmental and design policies capable of existing independently of housing distribution and were not policies for the supply of housing.

5. Policy RD1 was properly treated as a policy for the supply of housing, but paragraph 49 did not require it to be given no weight. Following Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin), an inspector may give appropriate weight to relevant aspects of an out-of-date policy. The inspector should explain whether, and to what extent, the policy is out of date, which aspects receive weight and why.

6. The paragraph 14 NPPF test is whether adverse impacts would significantly and demonstrably outweigh the benefits. The inspector reversed that test and thereby erred in law. A free-standing planning judgment on whether development is sustainable was nevertheless permissible: William Davis Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin) and Dartford BC v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin).

7. The inspector’s reference to earlier unsuccessful residential applications played only a minor reinforcing role and did not establish a separate error of law.

This was a first-instance claim under section 288 of the Town and Country Planning Act 1990. The court quashed the Secretary of State’s decision and directed that the planning appeal be considered afresh by a different inspector.