Smith, R (On the Application Of) v Warwickshire County Council [2016] EWHC 1854 (QB)

[2016] EWHC 1854 (QB)Case No CO/1325/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue BIRMINGHAM DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/07/2016
Before
THE HONOURABLE MR JUSTICE LEWIS
Between
R (on the application of)ClaimantRICHARD CHARLES SMITHClaimantWARWICKSHIRE COUNTY COUNCILDefendant
Richard Humphreys Q.C.(instructed by Shakespeare Martineau) for ClaimantDavid Forsdick Q.C.(instructed by Warwickshire County) for DefendantHearing Hearing dates: 12 July 2016
Judgment ApprovedThe Hon. Mr Justice Lewis:INTRODUCTION
[1]This is a claim for judicial review of the grant of planning permission by the Defendant, Warwickshire County Council (“the Council”) to itself for the change of use of land from use as a storage site for road chippings to use as an emergency stopping place for up to 12 caravans at land adjacent to Oldbury Road, Oldbury. The claimant, Mr Richard Smith, is a resident living adjacent to the site. The sole ground of challenge is that, on a proper construction of the Planning Policy for Traveller Sites (“the Policy”) issued by the Department for Communities and Local Government in August 2015, the Council were obliged to consider the possibility of alternative sites being granted planning permission for use for emergency stopping places and did not do so.

THE FACTS

[2]The Council has been aware for some time that there were gaps in the provision of sites for Gypsies and Travellers (“Travellers”) in their local authority area. There were periodic shortages of vacant pitches for caravans and Travellers both on permanent sites and on emergency stopping or transit sites within the county and in particular in the north. Assessments had indicated that 20 to 25 transit sites were needed in the north (5 in the area of North Warwickshire Borough Council area and 15 to 20 in the areas of Nuneaton and Bedworth). There were, in fact, no transit sites with planning permission in the county.[3]Due to the absence of transit sites, Travellers were setting up unauthorised encampments on highway land, other land owned by the Council and privately owned land. In 2011 there were approximately 94 unauthorised temporary encampments in Warwickshire varying in size from a single vehicle and caravan to large groups with a number of vehicles and caravans.[4]In October 2012, the Council approved the principle of providing emergency stopping places for Travellers and authorised the strategic director for communities to obtain all necessary consents for that purpose. The aim was to enable Travellers to stay for short periods, expected to be up to 28 days, at authorised sites with limited facilities to cater for the welfare needs of Travellers rather than having them stay at unauthorised locations. That would enable the Council to relocate Travellers to a more appropriate site where their presence would have a less harmful effect on the amenity of local residents, businesses and landowners whilst ensuring that the Travellers were provided with an appropriate site where their welfare needs could be addressed.[5]Council officers then began the process of identifying suitable sites. By October 2015, the Council had identified 39 potential sites in the north of the county from its landholdings. Following detailed assessment, the majority of potential sites were eliminated and four sites shortlisted for more rigorous assessment. One, the site adjacent to Oldbury Road, was identified as the most suitable site for the provision of an emergency stopping place for the north of the county. That site had been used for the storage of road chippings but was no longer needed for that purpose. The site was owned by the Council. Exercising delegated powers, the Council’s strategic director approved the site adjacent to Oldbury Road as the preferred location for an emergency stopping place in the north of the county and authorised the obtaining of the necessary permissions and consents to enable the proposed development to proceed.[6]On 3 November 2015, the appropriate Council officer applied for the grant of planning permission for a change of use of the site to use as an emergency stopping pace for up to 12 caravans. The application involved the Council considering the grant of planning permission to itself as it was the applicant, and the owner, of the land. In excess of 260 objections were received objecting to the application. These included objections from, amongst others, local residents and from Councillor Clark, the councillor representing the area. A report was prepared by Council officers for the relevant Council committee meeting on the 19 January 2016. In relation to site selection, paragraphs 5.5 to 5.7 said this:
“5.5. Concerns have been raised by local residents when commenting on the planning application that no assessment has been submitted by the applicant outlining why this site has been chosen with further suggestions made as to other suitable sites in the local and wider area. 5.6. It should be noted that there is no requirement for the applicant to undertake such an assessment within the planning application. In addition, whilst there may be other sites in Warwickshire that are capable of also accommodating Gypsy and Travellers, members are advised that they should seek to determine whether they consider this site to be appropriate rather than focusing on other sites that may or may not also accommodate such a proposal. 5.7 Notwithstanding this, a full site selection process was undertaken prior to the submission of the application with 39 sites considered. Of that number a shortlist of 4 was drawn up and Oldbury Road selected as the most deliverable option. The assessment took into account highways and access implications, land ownership, flood risk and proximity to local services.”
[7]The matter was considered at the relevant Council committee meeting on 16 January 2016. Councillor Clark submitted a written note which was considered by the committee. A number of people including Councillor Clark and the claimant, Mr Smith, spoke at the meeting against the grant of permission. The Council committee resolved to grant planning permission for the proposed development.[8]The claimant sought judicial review of the grant of planning permission on three grounds. Permission was granted on the first ground, namely whether the Council had erred in law by failing to consider alternative sites for emergency stopping places. Permission was refused on two other grounds and the Claimant does not seek to renew the application to challenge on those grounds and no longer pursues them.

THE LEGAL FRAMEWORK

[9]Local authorities, such as the Council, have power within their area to provide sites where caravans may be brought, whether for holidays or other temporary purposes or for use as permanent residences: see section 24 of the Caravan Sites and Control of Development Act 1960.[10]Changes of use of land to use for the stationing of caravans constitutes development and will require the grant of planning permission: see sections 55a and 57 of the Town and Country Planning Act 1990 (“the 1990 Act”). It is a breach of planning control, to station caravans on land without the grant of planning permission and doing so may lead to enforcement action to remedy the breach: see section 171A and 172 of the 1990 Act.[11]Applications for planning permission will need to be determined in accordance with the development plan for the area unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 20042. Material considerations include the National Planning Policy Framework (”the Framework”) and, in the present case, the Policy.[12]Paragraph 3 of the Policy provides that:
“The Government’s overarching aim is to ensure fair and equal treatment for travellers, in a way that facilitates the traditional and nomadic way of life of travellers while respecting the interests of the settled community.”
[13]Paragraph 4 sets out various aims of the Government which are intended to help achieve that overarching aim. They include “promoting more private traveller site provision while recognising that there will always be those travellers who cannot provide their own sites” and “that plan-making and decision-taking should aim to reduce the number of unauthorised developments and encampments and make enforcement more effective”. The aims also include enabling the “provision of suitable accommodation from which travellers can access education, health, welfare and employment infrastructure”. Policy A of the Policy sets out how local planning authorities should approach the gathering of evidence to support the planning process. That includes preparing and maintaining “an up-to-date understanding of the likely permanent and transit accommodation needs of their areas”. Policy B deals with planning for Traveller Sites and set out how local authorities should approach these issues when preparing their development plan. That includes identifying a supply of “specific deliverable sites sufficient to provide 5 years’ worth of sites”. The policy describes what deliverable means in this context as sites which should be: “available now, offer a suitable location for development and be achievable with a realistic prospect that development will be delivered on the site within five years. Sites with planning permission should be considered deliverable until permission expires…..[14]Policies C and D of the Policy deal with sites in rural areas and the countryside. Policy E deals with Traveller Sites in the Green Belt and Policy F deals with whether Traveller sites should have a mixed residential and business use. Policy G deals with major development projects. Policy H deals with the determination of planning applications for Traveller sites. It provides that applications must be determined in accordance with the development plan unless material considerations indicate otherwise. It refers to applications being assessed by reference to provisions and policies in the Framework and the Policy. Paragraph 24 provides, so far as material, as follows: “24. Local planning authorities should consider the following issues amongst other relevant matters when considering planning applications for traveller sites: a) the existing level of local provision and need for sites b) the availability (or lack) of alternative accommodation for the applicants c) other personal circumstances of the applicant d) that the locally specific criteria used to guide the allocation of sites in plans or which form the policy where there is no identified need for pitches/plots should be used to assess applications that may come forward on unallocated sites e) that they should determine applications for sites from any travellers and not just those with local connections…..” 15 The remainder of Policy H of the Policy deals with specific matters such as limiting the development of new traveller sites in the open countryside, particular factors to be taken into account and the position where the authority could not demonstrate an up-to-date 5 year supply of deliverable sites.

THE ISSUES

[16]Against that background, the issues that arise are:(1) on a proper construction of paragraph 24(b) of the Policy, was the Council required to consider the availability of alternative sites, in the sense of other sites that may be suitable and may be granted planning permission, when considering whether or not to grant planning permission for the change of use of a particular site to use as an emergency stopping place for up to 12 caravans?;(2) if so, and given that the Council did not do that, should the court refuse a remedy pursuant to the provisions of section 31(2A) of the Senior Courts Act 1981 on the grounds that it appears to the court that it is highly likely that the outcome for the claimant would not have been substantially different if the Council had considered the availability of alternative sites?

THE FIRST ISSUE - THE AVAILABILITY OF ALTERNATIVE ACCOMMODATION

[17]The claimant contends that the Council was required by reason of paragraph 24 of the Policy to consider the availability of other alternative emergency stopping sites when deciding whether to grant permission for a change of use of land to such use. By alternative sites, the claimant means, in substance, sites that would be suitable for use as an emergency stopping place and which would be likely to be granted planning permission for that purpose. The claimant contends that the phrase “accommodation” in paragraph 24 of the Policy means, in context, a site or sites for Travellers’ caravans. Consideration of the availability of alternative accommodation means consideration of potential sites, i.e. ones which do not currently have planning permission but which might be suitable for use as an emergency stopping place. By contrast, the defendant contends that the question of whether there is alternative accommodation available is a question of current fact, not future potential. The Policy, therefore, requires the decision-maker to consider if the applicant for planning permission has another place on which the applicant may lawfully and practicably station a caravan. As the Council here had no sites with planning permission for use as an emergency stopping place, it had no alternative accommodation available.

Discussion

[18]The circumstances in which possible alternative sites may amount to a material consideration such that a decision-maker will have erred in law if he failed to have regard to them was considered by Carnwarth L.J., as he then was, in Derbyshire Dales District Council and others v Secretary of State for Communities and Local Government and others [2009] EWHC 1729. As Carnwath L.J. said at paragraph 18: “to hold that a decision-maker erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered him) to do so”.[19]Further, at paragraph 37, Carnwath L.J. accepted that:
“if there had been specific national or local policy guidance requiring consideration of alternatives, failure to have regard to it might provide grounds for intervention by the court.”
[20]The claimant contends that paragraph 24 of the Policy is such specific national guidance and, properly construed, does require the decision-maker to have regard to possible alternative sites when considering an application for planning permission for use of land for an emergency stopping place for Travellers’ caravans. That, in turn, depends upon the meaning of paragraph 24(b) of the Policy. Such a “policy statement should be interpreted objectively in accordance with the language used, read as always, in its proper context”: Tesco Stores v Dundee at paragraph 18, per Lord Reed (with whom Lords Brown, Kerr and Dyson agreed).[21]In my judgment, the requirement in paragraph 24(b) of the Policy that the decision-maker have regard to the availability of alternative accommodation for the applicant means that the decision-maker must consider whether there is another place available on which the applicant may lawfully place a caravan, that is, another site with planning permission for use as an emergency stopping place on which the applicant may place his caravan. Paragraph 24 of the Policy, and paragraph 24(b) in particular, does not require a decision maker to have regard to the possibility of alternative sites which may be suitable and which may be granted planning permission in future. I reach that conclusion for the following reasons.[22]First, that interpretation, in my judgment, accords with the words of paragraph 24(b). The issue for the decision-maker is the availability (or lack) of alternative accommodation for the applicants. “Accommodation”, in context, must mean a site on which a caravan may be placed. “Alternative” means an alternative site to that for which planning permission is being sought. Such alternative accommodation is available if there is a site on which the applicants can lawfully station caravans instead of upon the site for which permission is sought. If the applicants already have a pitch on a site with planning permission, they have alternative accommodation available. If there is no such site available because there is no site with a vacant pitch or no site with planning permission (or, possibly, if it were not reasonably practicable for the applicant to occupy a pitch), then alternative accommodation is not available. The applicants would not be able to station their caravans on the other land.[23]Secondly, that interpretation, in my judgment, accords with the context in which the words in paragraph 24(b) of the Policy are used. Applicants for planning permission may include either an individual Traveller or Travellers, or the Council itself may seek planning permission for the use of land for the purpose of providing an emergency stopping place for caravans. In the case of an individual Traveller, one of the questions for the decision-maker is whether the applicant has alternative accommodation available to him: if so, that may weigh against the grant of the application for planning permission for use of a site for stationing a caravan. That indicates that the purpose of this aspect of the inquiry is intended to focus on the current factual position of the applicant, that is, does the applicant have somewhere else where he can lawfully station his caravan? The context does not indicate that the issue is focussed on a comparison between the site that is the subject of the application for planning permission and other possible sites which may be suitable and where planning permission may be granted.[24]In a context where, as here, the local planning authority is the applicant, and it is seeking planning permission to establish an emergency stopping place, the issue under paragraph 24(b) is whether there is any accommodation available to the Council to enable it to provide the emergency stopping places it wishes to provide in order to be able to move Travellers from unauthorised encampments. Paragraph 24(b) of the Policy is not focussing on the question of a comparison between the site for which planning permission is sought and other possible sites which might be suitable and might be granted planning permission. In the present case, there are no emergency stopping places with planning permission within its area so there is no alternative accommodation available to the Council within its area where it may relocate Travellers.[25]The claimant advanced a number of additional submissions to support his interpretation of the Policy. The principal additional submissions were these. First, he submitted that paragraph 24(a) of the Policy already required the decision-maker to consider the existing level of local provision and need for sites. He submitted that paragraph 24(b) would be unnecessary if it were focussing on the availability of sites in the sense of an existing site with planning permission for use as that would have been considered as part of the assessment of existing need required under paragraph 24(a) of the Policy. It must be borne in mind that the Policy H of the Policy applies both to individual Travellers making applications for planning permission and local authorities doing so. In the case of an application by an individual Traveller, the authority may have assessed that there is, in general terms, a need for a certain number of sites with a certain number of pitches and the authority may not have that number of sites and pitches available. The individual Traveller, however, may have a right to occupy a pitch at an existing site with planning permission. If so, he may have alternative accommodation available to him, and that will be a factor to take into account in deciding whether to grant his application for planning permission for change of use of other land. It is not, therefore, the case that paragraph 24(b) will never serve any additional purpose to paragraph 24(a) of the Policy. There will be cases where it may add an additional consideration.[26]The claimant also submitted that the Policy would have included the word “existing” before “alternative accommodation” if it had been intended to focus solely on sites with an existing planning permission and, indeed, when the Policy maker intended the focus to be on an existing state of facts, it did use that word as appears from paragraph 24(a) of the Policy. The word “existing” was included in paragraph 24(a) of the Policy to make it clear that it is current need, not future need, that is to be considered under that sub-paragraph. In my judgment, it is clear from the wording and context of paragraph 24(b), that that sub-paragraph is also focussing on an existing state of affairs, namely the availability of alternative accommodation for the applicant.[27]The claimant also submitted that the word “availability” implies a degree of capability of being turned to account and that would be satisfied if there were sites available which were potentially suitable and might be granted planning permission. In particular, he submitted that it was not necessary that the alternative accommodation be capable of lawful use at the time that the application was considered. Further, it was submitted that that was consistent with footnote 4 to paragraph 10 of the Policy (and a similar footnote to paragraph 47 of the Framework) indicating that, in the context of deliverable sites, the site had to be “available now”, indicating that the policy-maker considered that it may still be available even it were not available now but might become available at a later date.[28]The phrase “availability (or lack) of alternative accommodation” has to be read as a whole and in context. For the reasons given, the phrase means another site on which the applicant may lawfully place a caravan, that is, another site with planning permission for use as an emergency stopping place. The phrase is not concerned with the possibility of other sites becoming available. Further, in context, it is clear that a site is only available for use for caravans if there is planning permission in place for that use. The context is that it would be a breach of planning control, and hence unlawful in that sense, to use land for that purpose without planning permission. Policy H of the Policy is dealing with the consideration of applications for planning permission for such a use. It requires the decision-maker to consider if there is an alternative site available. That, in context, means lawfully available. If another possible site does not have planning permission, then it would not be lawful for the Traveller to station a caravan upon it. It cannot realistically be said to be available for use as accommodation if the use would involve a breach of planning control and render the use of the site subject to enforcement control under the 1990 Act. Further, the reference to “available now” in the footnotes to the Policy and the Framework occurs in the context of a definition of the need to identify sites deliverable over a five year period. It does not assist in the interpretation of the relevant phrase in paragraph 24(b) of the Policy. Those additional contentions do not, therefore, support the interpretation of paragraph 24(b) of the Policy put forward by the claimant.

THE SECOND ISSUE – DISCRETION

[29]In the circumstances, the defendant acted lawfully in its consideration of the application or planning permission. The question of the court refusing a remedy as a matter of discretion does not therefore arise. For completeness, however, I set out my provisional view on that issue.[30]The defendant relies only upon the statutory provision in section 31(2A) of the Senior Courts Act 1981, not on any common law principle. That sub-section requires the court to consider whether it appears to it to be highly likely that the outcome for the applicant would not be substantially different if the conduct complained of had not occurred. Here, the conduct complained of is that the relevant Council committee that considered the application for planning permission on 19 January 2016 failed to have regard to the availability of alternative sites. The defendant contends that if the relevant committee had, at that date, had regard to that question, then it is highly likely that the outcome would still have been the same and it would have granted planning permission for the site adjacent to Oldbury Road. It must not simply appear “likely” but must appear “highly likely” that that would be the outcome.[31]My provisional view is that, on the state of the evidence before the court, I cannot be satisfied that it does appear to be highly likely that that would be the outcome. The defendant relies upon the fact that it carried out an assessment of possible sites and the site at Oldbury Road was the most suitable. Further it relies upon the fact that Councillor Clarke, who has submitted a witness statement in these proceedings, has not identified an alternative site.[32]In that regard, the Council considered possible sites from land that it owned. It did not consider other possible sites owned by others. The question of an alternative site on land not owned by the Council which could accommodate the number of caravans proposed by the Council at this site (up to 12 caravans) had been raised before the Council committee meeting on 19 January 2016. By way of example, a Mr Davis sent a letter dated 23 December 2015 (and the letter appears to have been received on 30 December 2015) saying, amongst other things, that:
“Nuneaton and Bedworth Borough Council is currently consulting on their Submission Version of the emerging Nuneaton and Bedworth Local Plan and the Gypsy and Traveller Preferred Options. There is already a preferred option gypsy and traveller site allocated off Mancetter Road. Unlike the current application site, this site is sustainably located, adjoins the existing development boundary with access to public transport routes and within walking distance of services and facilities. In light of this allocation in the neighbouring borough plan what is the need for a further 12 pitches in neighbouring Hartshill.” ”
[33]Mr Grace, the County’s Principal Planner and the Planning Team Leader, set out his views on that submission in a witness statement dated 20 June 2016. He said this:
“3. On page 5 of my Exhibit, a Mr Davis refers to a site allocated in the submission version of the Nuneaton and Bedworth Borough Local Plan (the neighbouring borough to North Warwickshire where the application site is located). We have been informed by the responsible officer at the Borough Council that the site is in private ownership. The Borough Council has consulted on the submission version of the plan but it has not yet been submitted and further consultation may take place later this year. The policy approach in the submission version (Policy NB10) is to produce a Gypsy and Traveller Site Allocation Plan following adoption to meet an identified need for 40 residential sites and 15 – 20 transit sites (this target is in addition to the target of 5 new transit pitches in the North Warwickshire Local Plan and the need for up to 7 transit pitches identified in the Rugby GTAA). The Borough Council published a Background Paper in January 2016 which described this site as having capacity for 15 pitches and assessed its potential for development positively. However, it is a long way from becoming an allocation; even if developed as a transit site it would leave a substantial part of the need for such sites in the north of the county unmet; and, crucially, there is no suggestion in Policy NB10 or the Background Paper that this site is proposed for an emergency stopping place of the kind proposed at Oldbury. This potential allocation was part of the planning context in which the need for the Oldbury site was assessed in January and is not an alternative to it.”
[34]There are difficulties with that evidence. First, Mr Grace does not exhibit the documents referred to and it is not always possible to determine if the witness statement contains his view of the documents, viewed from the perspective of this litigation, or contains a statement of fact. By way of example, he states that there is no suggestion in Policy NB10 or the background paper that the site is proposed for an emergency stopping place of the kind proposed at Oldbury. In the absence of the documents referred to, it is not clear whether it is Mr Grace’s view that the documents do not expressly refer to the site being used as a transit site (from which Mr Grace then infers that the site would not be available or suitable for that purpose) or whether the document expressly states that it is not proposed that the site be a transit site.[35]Secondly on occasions, Mr Grace appears to be giving his views of matters whereas, if the Council had been obliged to consider alternatives, it would be the views of the relevant committee that would be relevant. For example, it appears to be Mr Grace’s view that as the plan, and the allocation, has not yet been submitted and is, in his words, “a long way” from becoming an allocation, that the proposed site would not be suitable for use as a transit site. Those matters would have been for the committee to decide if it had been obliged to consider alternative sites. It is also unclear what Mr Grace means in the last sentence of paragraph 3 of his statement when he refers to the potential allocation being part of the planning context in which the need for the Oldbury site was assessed in January. The evidence is that the Council considered 39 sites on land it owned. The site contained in the Nuneaton and Bedworth was not one of those sites and is not on land owned by the Council.[36]Further, in one respect, the reasoning in the statement appears to be unsound. There may be an issue as to whether or not the proposed plan allocated the site for permanent pitches or transit pitches. Mr Grace says, however, that even if it were developed as a transit site, it would leave a substantial part of the need for the sites in the north unmet. The need is for transit sites capable of accommodating 20 to 25 caravans. He says that, as the alternative proposal is for a site capable of accommodating up to 15 caravans that would still leave a need for up to 12 more pitches. The fact is, however, that the Council was not proposing to provide sites for up to 20 to 25 caravans. It only proposed a site for up to 12 caravans and only applied for planning permission for a site for up to 12 caravans. If the availability of alternative sites had been considered, the issue for the committee would have been whether this alternative site was more suitable for stationing 12 caravans than its proposed site at Oldbury Road. Furthermore, it is appropriate that paragraph 5.6 of the report to the committee that “there may be other sites in Warwickshire that are capable of also accommodating Gypsy and Travellers”. On one reading, that supports the suggestion that alternative sites might be available.[37]My provisional view, given the evidence before the court, is that it would not be appropriate to conclude that it is highly likely that the outcome for the applicant would not have been substantially different if the Council committee had considered alternative sites. It would not therefore have appeared appropriate to refuse a remedy pursuant to section 31(2A) of the Senior Courts Act 1981. As, however, I consider that the Council was not required to have regard to possible alternative sites, I do not need to reach a final determination on this issue.

CONCLUSION

[38]In the present case, the Council was considering an application for a change of use of land to use for an emergency stopping place that could accommodate up to 12 caravans. There were no sites with planning permission for such use in its local authority area. In considering such an application, paragraph 24(b) of the Policy required the Council to consider the availability, or lack of it, of alternative accommodation for the applicants. On a proper interpretation, that requires a local planning authority to consider whether there is another site with planning permission for use as an emergency stopping place available to the applicant on which the applicant could lawfully place caravans. The paragraph does not require a local planning authority to consider possible alternative sites that may be suitable for such a use and may be granted planning permission in the future. In circumstances where there were no available sites with planning permission for use as an emergency stopping place, there was no alternative accommodation available to which Travellers could be relocated. The Council was not obliged to consider whether there were other possible suitable sites which might be granted planning permission. The Council, therefore, acted lawfully in its consideration of the application for planning permission. The claim for judicial review is therefore dismissed.