Tingey v The Secretary of State for Housing, Communities and Local Government & Anor

The claimant sought to quash an inspector's dismissal of an appeal against refusal of planning permission for a settled gypsy and traveller site. The principal legal issue was whether the inspector had misconstrued the Government's Planning Policy for Traveller Sites (PPTS), in particular paragraph 4 (sub-paragraphs 4h and 4j), by treating those aims as requiring that occupiers must be able to access services and facilities on foot and by public transport. The court held that paragraph 4 does not lay down that specific requirement but that, in judging whether those aims are met, decision-makers may legitimately consider the range of modes by which occupiers can access local services, including on foot and by public transport, and the safety of pedestrian access.

The inspector had applied and weighed development plan policies (Horsham District Planning Framework Policy 23 and Policy 40), the PPTS and the National Planning Policy Framework (paragraphs 108–110). She found significant pedestrian safety risks and limited access by modes other than private vehicle, which conflicted with the development plan and PPTS aims, and that those factors outweighed the benefits of addressing an unmet need for pitches. The claim was dismissed because the inspector had not misinterpreted the PPTS and had reached a lawful planning judgment on the planning balance.

Background and parties: The Tingey family occupied caravans on land at Whiteoaks, Shoreham Road, Small Dole and appealed an earlier refusal of planning permission. An inspector dismissed the appeal on 11 September 2019. The claimant (Mr Sam Tingey) sought under section 288 of the Town and Country Planning Act 1990 to quash the inspector's decision. The Secretary of State for Housing, Communities and Local Government was the first defendant; Horsham District Council was the second defendant (not represented in the hearing before the court).

Relief sought: Quashing of the inspector's decision on the basis that the inspector misinterpreted the PPTS and therefore erred in law when drawing the planning balance.

Procedural posture: Permission to proceed was given by an order dated 29 November 2019 (James Strachan QC sitting as a Deputy Judge of the High Court) on ground 1 in part; permission on grounds 2 and 3 was refused. This is a first-instance judicial review under section 288.

Issues framed:

• Whether the inspector misconstrued paragraph 4 of the PPTS (notably sub-paragraphs 4h and 4j) as imposing a specific requirement that occupiers of new traveller sites must be able to access services and facilities by foot and public transport.
• Whether any such error was material to the inspector's decision and planning balance.

Inspector's findings summarised: The inspector found the occupiers fell within the PPTS definition of "gypsies and travellers." She concluded the site was in the countryside but not remote, and that it conflicted with criteria (b) and (d) of Policy 23 (safe pedestrian/vehicular access and proximity to services) and with Policy 40 (safe and suitable access for all). She identified a clear unmet need for pitches which weighed significantly in favour of the proposal, but concluded the significant pedestrian safety risks and reliance on private vehicles outweighed that benefit and that planning permission should be refused. She considered ECHR article 8 and A1P1 and the Equality Act 2010 and concluded the interference was proportionate given the risks identified.

Court's reasoning: The court accepted that paragraph 4 of the PPTS does not itself state a specific requirement that occupiers must be able to access services by foot and public transport. Nevertheless, "access" within the aims of paragraph 4 should be understood to embrace all modes, and it is a matter for planning judgment to assess the extent to which a particular proposal fulfils the aims of paragraph 4 (including whether the site enables occupiers to access education, health and other services). Decision-makers should be guided by locally specific criteria in the development plan and apply the PPTS in conjunction with the Framework. The inspector had applied Policy 23 and Policy 40, and the Framework (paras 108–110), and had reasonably judged that the site could not safely be accessed other than by private vehicle, with consequent risks and limitations that outweighed the unmet need. The claimant did not establish that the inspector misunderstood the policy framework or that any error was material to the outcome. Accordingly ground 1 failed.

Conclusion: The claim to quash the inspector’s decision was dismissed because the inspector’s interpretation and exercise of planning judgment were lawful and the alleged error, even if made, would not have been material to the outcome.

This was a first-instance claim under section 288 of the Town and Country Planning Act 1990. The claim is dismissed. The court held that the inspector did not misinterpret paragraph 4 of the PPTS as imposing a specific requirement that occupiers of traveller sites must be able to access services by foot and public transport; rather she lawfully exercised planning judgment in assessing the degree to which the site satisfied the PPTS aims and the development plan (Policies 23 and 40) in light of pedestrian safety and access considerations. Even if there had been a narrower error, it would not have been material to the outcome of the planning balance.

Permission to proceed on ground 1 in part was granted by an order dated 29 November 2019 (James Strachan QC sitting as a Deputy Judge of the High Court); permission on grounds 2 and 3 was refused. The decision under challenge is the inspector's appeal decision dated 11 September 2019 (DL), which dismissed the planning appeal. No further appellate history is stated in the judgment.