Judge quashes grant of planning permission for residential gypsy site

A Deputy High Court judge has quashed a Welsh council’s grant of temporary planning permission for the use of land as a residential gypsy site.

In Jayes, R (On the Application Of) v Hamilton [2017] EWHC 874 (Admin) the claimant's house was opposite the site and overlooked it from a raised position.

He challenged Flintshire County Council's decision on 7 April 2016 to grant planning permission. The permission allowed use of the site to accommodate nine families on seven pitches with a total of thirteen caravans (no more than seven of which were to be static), retention of hardstanding and boundary works, retention and continued use of three amenity blocks and the erection of a fourth.

The grant was of temporary permission and the use was limited to a maximum of five years from the date of the grant.

Four grounds of challenge were advanced:

1. There was no sufficient evidence as to the circumstances of the children of the occupants of the site to justify considering any needs of the children as material. The approval related to all the site but there were some pitches where no children lived.
2. The grant of planning permission for a limited period, an exception to planning principles that would have mandated refusal, was justified on the ground that there was an existing need for gypsy sites, and assessment of the needs of gypsies in the county was forthcoming, but the council's officer had stated that the local plan would not meet the needs, and, on the other hand, there were unoccupied pitches on sites with existing permission.
3. The duty under s 103 of the Housing Wales Act 2014 to provide sites (referred to in the officer's report) had not yet arisen.
4. Analysis of discussion at the meeting [of the planning and development control committee] tended to show that the decision had been influenced by the possibility of permanent permission being granted on appeal if the decision was outright refusal.

Mr CMG Ockelton, Vice President of the Upper Tribunal (sitting as a Deputy High Court judge), ruled in favour of the claimant on the first ground only.

The judge said a report prepared for the meeting had wholly failed to express correctly the process the committee needed to undertake.

“The report itself is admittedly vague. It works on the premise that there are children living on the site, but their number, identity and age, as also the question whether they are encompassed in the application, are all unknown factors. The statement that the Children Act 2004 requires the Council to safeguard and promote the wellbeing of children is of course correct, as is the fact that 'the impact of [any children] not having a settled base' would need to be taken into consideration if the application were to be refused outright,” he noted.

“But in context, those assertions are seriously misleading. First, they imply that there has been an assessment of the needs of actual children on the site, so that the loss of a 'settled base' could be identified as contrary to their best interests. Secondly, they imply that the statutory and any other duties stand alone and are not merely factors (albeit important factors) to take into account. Thirdly, they imply that refusal in the present case would not be an option.”

The judge said his decision that the first ground had been made out was “not on the specific basis that the council ought to have considered each plot separately, but on the general basis that it ought to have ascertained and evaluated the relevant facts in relation to children”.

He added: “In these circumstances it is impossible to say what the decision would have been if the error of law had not occurred, because the facts remain unclear and the evaluation has not been made.”

The council is understood to be seeking permission to appeal.