Whitehead (On Behalf of the Copthorne Village Association), R (On the Application Of) v Mid Sussex District Council

The court considered a challenge to Mid Sussex District Council's grant of outline planning permission for a strategic housing allocation (Policy DP11) which did not include on-site provision for permanent Gypsy and Traveller pitches, but instead secured a financial contribution for off-site provision. The key legal issues were (1) the proper construction of Policy DP11 and related policies (DP9, DP10, DP33) as between on-site provision and an equivalent financial contribution off-site; (2) whether the planning officers' report materially misled members of the planning committee; and (3) whether the decision-maker had complied with the public sector equality duty in section 149 of the Equality Act 2010.

The judge held that DP11 does not give priority to on-site provision over an equivalent financial contribution: both are legitimate, equivalent ways of meeting the policy requirement provided any off-site provision is suitable, available, achievable and can be made operational in an appropriate timescale. On a fair reading the officers' report did not materially mislead members; it addressed the site constraints, explained the officers' judgment that on-site provision was not practicable and identified off-site options and the intended s106 mechanism. The decision-maker had had due regard to the listed equality needs: compliance with the DP policies directed at meeting Gypsy and Traveller needs was a legitimate means of discharging the s149 duty in the planning context. The claim for judicial review was dismissed.

This was a first instance judicial review of Mid Sussex District Council's decision of 16 March 2020 to grant outline planning permission for up to 500 dwellings and associated infrastructure on a strategic site (Policy DP11). The claimant, representing the Copthorne Village Association, sought to quash the permission on the basis that the officers' report misdirected members about the council's policy obligations to provide Gypsy and Traveller pitches, failed to draw material considerations to members' attention (including reduction of conventional housing to enable on-site pitches), and failed to have due regard to the equality needs of Gypsies and Travellers under section 149 of the Equality Act 2010. The claimant also relied on post-hearing material showing potential loss of the council's contractual control over an alternative site at Copthorne.

Procedural posture and relief sought: Permission to apply for judicial review had been granted. The claimant sought quashing relief of the council's grant of outline permission.

Issues framed:

• Construction of Policy DP11: does it give priority to on-site Gypsy and Traveller provision or treat on-site provision and an equivalent financial contribution as alternatives?
• Whether the officers' report materially misled planning committee members by misinterpreting the development plan, omitting material considerations, or failing adequately to address the deliverability, suitability and timescale for off-site provision.
• Whether the council complied with section 149 Equality Act 2010 (the public sector equality duty) in reaching its decision.

Court's reasoning (concise): The court construed DP11 in context and concluded it does not give priority to on-site provision; the policy permits either on-site provision or an equivalent financial contribution where off-site provision can be shown to be suitable, available, achievable and deliverable within an appropriate timescale. The officers' report was to be read benevolently for local members and, on that reading, set out the site constraints, recorded that a revised application and pre-application discussions for Copthorne were underway and explained why officers accepted off-site contribution as policy-compliant. The report did not materially mislead members. On the public sector equality duty, the judge held that in the planning context compliance with policies expressly designed to meet the needs of a protected group (here the DP provisions for Gypsies and Travellers) can show that the decision-maker had due regard; section 149 does not require a particular outcome and was satisfied by the approach taken. The court also considered post-hearing evidence about contractual arrangements relating to the Copthorne site and granted leave to amend the claim to plead that new material, but that did not change the dismissal of the claim on the primary grounds. The claim was dismissed.

The claim is dismissed. The court held that Policy DP11 does not prioritise on-site provision of Gypsy and Traveller pitches over an equivalent financial contribution; the planning officers' report, read fairly, did not materially mislead members; and the council complied with its duty under section 149 of the Equality Act 2010 by applying development plan policies aimed at meeting the identified needs of the Gypsy and Traveller community. The claimant was given leave to amend on late-discovered factual matters, but that did not alter the dismissal.