Judge rejects bid to challenge decision to decline to determine application for retrospective planning permission for Traveller site

Mr Justice Kimblin said in the High Court that all the grounds advanced were unarguable.

The applicant applied for retrospective planning permission for change of use to a caravan site for Gypsy travellers with associated hardstanding, two utility units and a cess tank.

Officers recommended to Barnsley it should to decline to determine the application under s70C of the Town and Country Planning Act 1990 as there was a pre-existing enforcement notice concerned with a breach of planning control, and the application would further delay enforcement proceedings.

Barnsley had refused an earlier application on the basis of being inappropriate development in the green belt, contrary to development plan policy and with inadequate information on both biodiversity and foul drainage.

The applicant had appealed but an inspector rejected this and she then sought judicial review.

The judge said the grounds argued interacted and he would consequently not deal with them in order.

He said Barnsley came to an initial view that the site would not automatically be grey belt and “the real difficulty encountered by the grey belt argument in this case is a finding that the appeal site is not sustainable and, in consequence, it would fall outside of the definition and application of the grey belt policy within the NPPF, which point seems to me to be definitive in this regard”.

Kimblin J said it was “unarguable that there has been a failure to provide not only an opportunity but also several opportunities for those who seek permission for these uses and operational development to persuade both the local authority and also the Secretary of State.

“In short, these grounds have failed on the facts of this case and they would in any event be an unsuitable vehicle for exploration of the arguments which [the applicant’s counsel] raises.

“For similar reasons, I would conclude that the public sector equality duty has already been considered and has further been revisited in the context of the section 70C decision…the council has considered those matters and has concluded that they are outweighed in this instance by the public interest in the enforcement of planning control and the protection of the green belt”.

He said the inspector had found harm to the green belt was such that the potential for unmet need would not in itself or in combination with other considerations clearly outweigh the identified harm to the green belt and the other identified harms.

“In my judgment, that renders unarguable the grounds…as to need, green belt, grey belt and, indeed, in respect of proportionality, because the inspector has dealt with the counterfactual scenario in which there is additional need and carried out that balancing exercise in respect of the green belt assessment.

“Indeed, in my judgment, it would put the planning authority in some difficulty in reaching an alternative balance in the light of that decision in an appeal considered in some detail by the Secretary of State.”

Kimblin J also dismissed the applicant’s argument on rationality. He said the factors which go into any rationality argument “do not arguably meet the high threshold nor arguably give rise to any reasonable prospect of overcoming the broad discretion which is given to a planning authority in respect of section 70C”.

Mark Smulian