This analysis was first published on Lexis®PSL on 26 November 2020 and can be found here (subscription required).

Planning analysis: The High Court dismissed a judicial review challenge of the decision of a local planning authority to grant planning permission for a mainly residential development. A relevant development plan policy had required either on-site provision for Gypsy and Traveller pitches or that a contribution should be made for off-site provision, subject to certain criteria. The challenge was concerned with the decision of Mid Sussex District Council (the Council) to accept a financial contribution rather than require on-site provision. The court rejected arguments that the relevant officer’s report (OR) had misled members in several ways, including by misinterpreting the relevant development plan policy, failing to have due regard to equality needs, and by its approach to off-site provision. Written by Howard Leithead.

R (on the application of Whitehead (on behalf of the Copthorne Village Association)) v Mid Sussex District Council [2020] EWHC 3166 (Admin)

What are the practical implications of this case?

As the judgment was concerned with the interpretation of specific development plan policies and particular factual circumstances, caution should be exercised when seeking to draw wider conclusions.

For instance, the approach that the court took to considering whether the development plan prioritised the provision of on-site Gypsy and Traveller pitches as opposed to off-site financial contributions will inform those considering a similar situation. But it will still be necessary to consider the particular provisions of the relevant development plan policies in context.

Similarly, the approach that the judge took to considering equality needs will be instructive, but care should be taken in applying this approach to other situations.

What was the background?

The claimant, Kerry Whitehead, brought a judicial review claim on behalf of the Copthorne Village Association (CVA), of the decision of the defendant Council to grant planning permission for a development including access for up to 500 residential dwellings and land for a primary school at land to the north of Clayton Mills, Ockley, Hassocks, West Sussex (the Site) following an application made the interested party developer, Gleeson Strategic Land Ltd (GSL).

The local development plan made provision for residential housing and Gypsy and Traveller pitches in the area. Policy DP11 of the local development plan made a strategic allocation of land to the north of Clayton Mills for approximately 500 new homes and a new primary school. The allocation also included the provision of permanent pitches for Gypsies and Travellers, though stated that a financial contribution towards the off-site provision of pitches would be acceptable in specified circumstances. Policy DP33 further identified a need to accommodate 23 households of settled Gypsies and Travellers and stated that an allocation of sites for pitches had been made in specified locations, including on land to the north of Clayton Mills.

In granting permission, the Council did not require on-site provision of Gypsy and Traveller pitches, but did secure a financial contribution from GSL for such provision elsewhere.

CVA took general exception to proposals for the development of relevant strategic sites that did not provide for on-site provision of Gypsy and Traveller pitches as the Council had relied on the lack of such provision to justify its own proposal that land at Copthorne should be used for Gypsy and Traveller pitches. In 2019, the Council granted planning permission for the provision of 13 pitches at the Copthorne site, but consented to judgment when CVA brought a judicial review claim of the decision. It was expected to make a further planning application in respect of the Copthorne site.

The grounds of challenge alleged that the OR had misdirected the relevant planning committee in various respects.

What did the court decide?

In considering the issues the judge identified four questions:

Did the OR mislead members by relying on a misinterpretation of Policy DP11? (Ground 1(i))

The key question of construction was whether Policy DP11 gave any priority to provision on-site of Gypsy and Traveller pitches, or whether the requirements of the policy were equally satisfied by an equivalent financial contribution which met the relevant criteria. In answer, the judge said that it was a short question of construction and that there was nothing in Policy DP11 to suggest that the policy prioritized either method of provision. The judge further said that there was no ambiguity and that, even if there were, the reasoned justification for the strategic allocation of pitches would not have helped to resolve it.

Did the OR fail to draw material considerations to the attention of members? (Ground 1(ii))

The claimant had argued that the OR had materially misled the members of the planning committee in that it had failed to alert them to the option of reducing conventional housing. However, as her counsel had accepted, the premise to the argument was that Policy DP11 prioritised the provision of on-site Gypsy and Traveller sites. The judge held that, as she had rejected that interpretation, the argument fell away. She further observed that the OR had referred to the possibility of reducing the amount of conventional housing.

Did the Council fail to have due regard to equality needs?

The judge rejected the claimant’s various arguments that the Council failed to have due regard to equality needs when granting permission. She said that the argument that the Council had failed to consider whether the constraints of the site could be addressed by reducing the amount of conventional housing and providing on-site pitches was premised on the claimant’s interpretation of Policy DP11, which had not been accepted. In any event, the judge said that there was no requirement under section 149 of the Equality Act 2010 to achieve a particular result.

Among the other arguments rejected by the judge was that there was a requirement under section 149 to consider the material difference for the Gypsy and Traveller community between provision of pitches on the Site and off-site provision. The Judge explained that this was not an exceptional case in which the Council was required by section 38(6) of the of the Planning and Compulsory Purchase Act 2004 to consider an application that had not been made and that the relevant policies had already been the subject of an equality impact assessment.

Were the members misled by the approach in the OR to off-site provision? (Ground 2)

The judge did not accept numerous arguments made by the claimant that the OR had materially misled members in how it considered off-site provision. Her conclusions included: whether the criteria in Policy DP11 had been met was a matter of planning judgment, the criteria were properly addressed in the OR, and the OR gave adequate reasons for its conclusions that the criteria were met.

Case details:

  • Court: High Court, Queen’s Bench Division, Planning Court
  • Judge: Elisabeth Laing J
  • Date of judgment: 23 November 2020