Smith, R (On the Application Of) v Warwickshire County Council

Under paragraph 24(b) of the Planning Policy for Traveller Sites, “alternative accommodation” means a site presently available to the applicant on which caravans may lawfully be stationed. It ordinarily requires an existing site with planning permission, not a potentially suitable site which might obtain permission in the future. A planning authority considering an application for an emergency stopping place is therefore not required by paragraph 24(b) to compare the application site with possible alternative sites lacking planning permission.

The claimant, a resident adjoining land at Oldbury Road, challenged the Council’s grant of planning permission to itself for an emergency stopping place for up to 12 caravans. The sole surviving ground was that paragraph 24(b) of the Planning Policy for Traveller Sites required consideration of other potentially suitable sites which might receive planning permission. The Council had considered 39 sites from its own landholdings but had not assessed possible alternative sites more generally.

The court also considered, provisionally, whether relief should be refused under section 31(2A) of the Senior Courts Act 1981 if the legal challenge succeeded.

1. Claim dismissed. The Council acted lawfully in determining its application for planning permission.
2. Paragraph 24(b) of the Planning Policy for Traveller Sites required consideration of whether alternative accommodation was available to the applicant. In context, that meant another site on which caravans could lawfully be stationed, ordinarily a site with planning permission for use as an emergency stopping place.
3. The provision was concerned with the applicant’s existing factual position. It did not require a comparison with sites which might be suitable and might obtain planning permission in the future. That interpretation was supported by the wording and context of paragraph 24(b), including its application both to individual Travellers and to local authorities seeking to provide stopping places.
4. The reference to “available” did not extend the inquiry to possible future sites. A site whose use would breach planning control could not realistically be treated as available accommodation. The footnote reference to sites being “available now” concerned the separate definition of deliverable sites over a five-year period and did not alter the meaning of paragraph 24(b).
5. The approach was consistent with Derbyshire Dales District Council and others v Secretary of State for Communities and Local Government and others [2009] EWHC 1729, which required a legal principle compelling consideration of alternatives before failure to consider them could constitute an error of law. Specific national policy guidance could supply such a principle, but paragraph 24(b) did not do so in relation to future sites.
6. The court expressed the provisional view that, had a duty to consider alternatives existed, it could not have been satisfied that the outcome would have been highly likely not to differ substantially under section 31(2A) of the Senior Courts Act 1981. That issue did not require final determination.

The judgment was a first-instance judicial review decision. Permission was granted on the challenge concerning alternative sites; permission on two other grounds was refused and those grounds were not pursued.