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

The claimant, a Romany traveller, sought judicial review under section 288 of the Town and Country Planning Act 1990 of the Secretary of State's decision (made by an Inspector) dismissing his appeal against the council's refusal of planning permission for a single gypsy pitch. The court held that the Inspector had made material errors of law in applying national planning policy.

The principal legal errors identified were: (1) failure to treat Local Plan Policy C2 (countryside beyond the Green Belt) as a "policy for the supply of housing" within the meaning of paragraph 49 of the National Planning Policy Framework (NPPF); (2) inadequate treatment of Policy RD1 as a policy affected by paragraph 49 NPPF such that the Inspector did not explain which parts he treated as out of date or what weight he afforded them; and (3) mis-stating and applying the paragraph 14 NPPF planning balance test by reversing the correct burden (stating benefits did not outweigh harm rather than whether adverse impacts significantly and demonstrably outweighed benefits).

The Court accepted that the Inspector was entitled to carry out a free-standing assessment of sustainability, but concluded that because the errors in the application of the NPPF were capable of affecting the outcome, the Secretary of State's decision was quashed and the appeal must be reconsidered by a different inspector.

Background and parties: The claimant and his wife, Romany gypsies, occupied a mobile home on land adjacent to East View Cottages, Surrey. They applied for planning permission (3 September 2012) for one gypsy pitch with a utility/dayroom and hardstanding. Waverley Borough Council refused permission (2 August 2013). The claimant occupied the site notwithstanding the refusal; the Council issued an enforcement notice and the claimant appealed both the enforcement notice and the planning refusal to the Planning Inspectorate. The appeal against the enforcement notice was allowed in part by extension of the compliance period; the planning appeal was dismissed by an Inspector on behalf of the Secretary of State (decision dated 30 October 2014). The claimant then applied to the High Court under section 288 TCPA 1990 to quash the Secretary of State's decision.

Nature of the claim and relief sought: The claimant sought quashing of the Secretary of State's decision on grounds of error of law in applying the NPPF (paragraphs 14 and 49), misapplication of local plan policies (notably C2 and RD1), reliance on previous decisions, and a materially flawed approach to the best interests of the child (the latter was abandoned at hearing).

Issues framed by the court: The court identified the following central issues: (i) whether paragraph 49 NPPF should have been engaged and, if so, whether Policies C2, D1, D4 and RD1 were "policies for the supply of housing" covered by paragraph 49; (ii) whether the Inspector misapplied paragraph 14 NPPF when conducting the planning balance; (iii) whether the Inspector was entitled to carry out a standalone sustainability assessment; and (iv) whether the Inspector improperly relied on earlier unsuccessful planning applications for the site.

Court’s reasoning and conclusions: The court held that traveller accommodation falls within the broad concept of "homes" addressed by section 6 of the NPPF and that the Planning Policy for Traveller Sites (PPTS) is supplementary to the NPPF. The court concluded that Policy C2 was a general restriction on development in open countryside and therefore should have been treated as a policy for the supply of housing for paragraph 49 purposes. Policies D1 and D4 were not policies for the supply of housing as they were specific environmental/design constraints. RD1 was correctly identified by the Inspector as a policy for the supply of housing but the Inspector erred by applying its criteria as if it were fully in force and without explaining which elements he treated as out of date or what weight he gave to remaining elements, contrary to the approach endorsed in Crane. The Inspector also reversed the paragraph 14 test by expressing the balance in the wrong terms. The court accepted that the Inspector could make a separate assessment of sustainability and found no error in that part of his reasoning. Because the combined errors were capable of affecting the outcome, the Secretary of State's decision was quashed and the matter was remitted for reconsideration by a different inspector.

Procedural posture: The claim succeeded in part: the court quashed the Secretary of State's decision and remitted the appeal for reconsideration.

The claimant's application is allowed. The court quashed the Secretary of State's decision dated 30 October 2014 and remitted the appeal for reconsideration by a different inspector. The rationale was that the Inspector had erred in law by (a) failing to treat Local Plan Policy C2 as a policy for the supply of housing under paragraph 49 NPPF, (b) misapplying Policy RD1 without explaining which aspects were out of date or what weight was given, and (c) mis-stating and reversing the paragraph 14 NPPF planning balance test. The court found no legal error in the Inspector's separate assessment of sustainability and rejected the contention that improper reliance on prior applications vitiated the decision.

The claimant appealed the council's refusal of planning permission to the Planning Inspectorate (Inspector: Mr Graham Dudley). The Inspector dismissed the appeal against refusal (decision dated 30 October 2014). The claimant also appealed an enforcement notice under section 174 TCPA 1990; that appeal was allowed in part by variation of the compliance period from one week to 18 months, otherwise upheld. The present proceeding is a section 288 TCPA 1990 claim in the High Court to quash the Secretary of State's decision; the High Court quashed the decision and remitted the appeal for reconsideration by a different inspector.