The Royal Borough of Kingston Upon Thames v Secretary of State for Levelling Up, Housing and Communities & Anor

The claimant challenged a Planning Inspector's grant of planning permission for a private gypsy and traveller site under s.288 Town and Country Planning Act 1990. The central legal issue was whether paragraph 150(e) of the National Planning Policy Framework (NPPF) could be read to allow a residential change of use (the stationing of a caravan) in the Green Belt, notwithstanding Planning Policy for Traveller Sites (PPTS) policy that traveller sites in the Green Belt are inappropriate development (PPTS paragraph 16).

The court held that the Inspector erred in law by failing to give effect to paragraph 4 of the NPPF, which requires the NPPF to be read with the PPTS, and by construing paragraph 150(e) in a way that would render traveller sites not inappropriate. The judge concluded that the examples in paragraph 150(e) must inform its scope and that residential changes of use do not fall within that paragraph. The Inspector's decision was quashed and the matter remitted to the Secretary of State.

The claimant, Royal Borough of Kingston upon Thames, brought proceedings under s.288 TCPA 1990 to challenge a Planning Inspector's decision dated 21 July 2022 granting permission for change of use to a private gypsy and traveller site for one mobile home.

Background and parties:

• The Secretary of State conceded that there was an error of law and accepted the decision should be quashed.
• The second defendant (the appellant before the Inspector) sought to uphold the Inspector's grant of permission.

Nature of the claim and relief sought: The claim sought quashing of the Inspector's decision on the ground of legal error in the application of Green Belt policy in the NPPF and the PPTS.

Issues framed by the court:

• Whether paragraph 150(e) of the NPPF could properly be read to permit a residential change of use (stationing of a caravan) in the Green Belt.
• How paragraph 150(e) should be read alongside PPTS paragraph 16, given paragraph 4 of the NPPF requires reading the documents together.
• Whether the Inspector had misdirected himself or failed to take into account a material consideration.
• A subsidiary discrimination argument was raised by the second defendant invoking Article 14 read with Article 8 ECHR and section 19 Equality Act 2010.

Court's reasoning:

• The Inspector treated the proposal as falling within NPPF paragraph 150(e) and therefore not inappropriate, and did not apply the PPTS rule that traveller sites in the Green Belt are inappropriate.
• The court concluded that the Inspector materially misdirected himself by failing to take into account paragraph 4 of the NPPF and the PPTS policy (paragraph 16) which explicitly states traveller sites in the Green Belt are inappropriate development. That failure amounted to an error of law.
• The court analysed the wording "such as" and the examples in paragraph 150(e) (and the background to its genesis following Timmins) and concluded those examples delimit the scope of the provision; residential changes of use do not share the characteristics of the listed examples and therefore do not fall within paragraph 150(e).
• The discrimination argument did not arise because the court found residential changes of use are not encompassed by paragraph 150(e), so there was no discriminatory mismatch in treatment between travellers and the settled community under that policy.

Disposition: The decision letter was quashed and the matter remitted to the Secretary of State for reconsideration in accordance with the court's findings.

The claim succeeded: the court quashed the Planning Inspector's decision and remitted the matter to the Secretary of State. The Inspector erred in law by failing to apply paragraph 4 of the NPPF and the PPTS (paragraph 16) when construing paragraph 150(e) of the NPPF; the court held that residential changes of use (such as stationing a caravan for residential purposes) do not fall within paragraph 150(e) and the Inspector therefore should have treated the proposal as inappropriate development in the Green Belt unless very special circumstances were shown.