Wenman –v- SSCLG  EWHC 925 (Admin), 21 April 2015, Mrs Justice Lang
Mr Wenman is a Romani Gypsy who was seeking permission for a one pitch Gypsy Site for him and his family. He was unsuccessful before the local planning authority and also before the Planning Inspector. He appealed to the High Court under Town and Country Planning Act 1990 Section 288 on the basis that the Planning Inspector had failed to properly address the relevance of the National Planning Policy Framework (NPPF). The First Defendant, the Secretary of State, argued that NPPF was not relevant here and what was relevant was only Planning Policy for Traveller Sites (PPTS).
Mrs Justice Lang stated as follows:-
28. By Section 8(1) Housing Act 1985:
“Periodical review of housing needs
Every local housing authority shall consider housing conditions in their district and the needs of the district with respect to the provision of further housing accommodation”.
29. Section 225 Sub-section (1) Housing Act 2004, requires a local housing authority carrying out an assessment under Section 8 Housing Act 1985 to assess “the accommodation needs of Gypsies and Travellers residing in or resorting to their district”. “Accommodation needs” are defined in Sub-section 5(b) to include “needs with respect to the provision of sites on which caravans can be stationed”.
30. Sub-sections (2) and (3) provide that, where a local housing authority is required under Section 87 Local Government Act 2003 to prepare a strategy in respect of such accommodation needs, the local authority must take the strategy into account in exercising their functions. The term “functions” includes functions exercisable otherwise than as a local housing authority.
31. By Section 87 of the Local Government Act 2003 (“Housing Strategies and Statements”):
“The appropriate person [The Secretary of State] may –
(a) Require a local housing authority to have a strategy in respect of such matters relating to housing as [he] may specify …”
32. I accept Mr Rudd’s [Mr Rudd was Counsel for the Claimant] submission that these statutory provisions indicate that accommodation for gypsies and travellers is to be treated as a species of housing, when housing needs are assessed for any purpose, including planning for future housing requirements.
33. Mr Rudd also referred to the Guidance issued on 14 November 2012 by the Department for Communities and Local Government to local authorities when compiling data for national and official statistics. It indicates that mobile homes and gypsy caravans occupied as a main residence are to be treated as “dwellings” for Census, housing stock and planning purposes, even though they are categorised as “temporary” dwellings. …
35. Mr Rudd also referred to a “Good Practice Guide” issued by the Department for Communities and Local Government in 2008, entitled “Designing Gypsy and Traveller Sites”, to accompany previous national policy. It provided that national planning policy for delivering housing objectives applied equally to accommodation for the gypsy and traveller community …
Mr Rudd submits, and I accept, that even with the introduction of a standalone policy for traveller sites in 2012, it is unlikely that the Secretary of State intended to depart from the general policy that housing objectives should include provision of suitable accommodation for gypsies …
36. … The issue is whether Section 6 of the NPPF, in particular, paragraph 49, ought to have been excluded from consideration, on the grounds that it only applies to permanent ‘bricks and mortar’ accommodation, not mobile home/caravan accommodation …
38. In my judgment, much of Section 6 of the NPPF, which is headed “Delivering a wide choice of high quality homes”, is intended to apply to all types of accommodation i.e. mobile homes and caravans as well as bricks and mortar structures, provided that they are to be used as “homes”. Although the word “housing” is repeatedly used in Section 6, this should be broadly interpreted … Mr Rudd also said, in his experience, local planning authorities with significant non-gypsy mobile home sites in their areas included these in their housing supply figures. In my view, that would be consistent with the guidance on the meaning of “dwellings” referred to above in which mobile homes in permanent residential use are treated a “dwellings” even though they are not “bricks and mortar” houses …
41. … I do not consider that the words “housing applications” in paragraph 49 should be interpreted narrowly so as to be restricted to applications for planning permission to construct “bricks and mortar” houses …
42. However, under the PPTS, there is specific provision for local planning authorities to assess the need for gypsy pitches, and to provide sites to meet that need, which includes the requirement to “identify, and update annually, a supply of specific deliverable sites sufficient to provide five years’ worth of sites against their local set targets” (paragraph 9(a)). These provisions have a direct parallel in paragraph 47 NPPF which requires local planning authorities to use their evidence base to ensure that the policies in their Local Plan meet the full objectively assessed needs for housing in their area, and requires, inter alia, that they “identify and update annually a supply of specific deliverable sites sufficient to provide five years’ worth of housing”.
43. The rationale behind this specific requirement for a five year supply figure under paragraph 9 PPTS must have been to ensure that attention was given to meeting the special needs of travellers. Housing provision for this sub-group was not just to be subsumed within the general housing supply figures for the area. Therefore it seems to me most unlikely that the housing needs and supply figures for travellers assessed under the PPTS are to be included in the housing needs and supply figures under paragraph 47 NPPF, as this would amount to double counting.
44. … Paragraph 49 states:
“Housing applications should be considered in the context of the presumption in favour of sustainable developments. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites”. …
47. In this case, the Local Plan Policies for the supply of housing were relevant to applications for new traveller sites because Policy H11 on Gypsy Sites provided:
“Proposals for new sites and for additional development on the existing sites will only be acceptable where they are consistent with other policies in this Plan …” (emphasis added) …
Mrs Justice Lang then moved on to other policies in the Local Plan as follows:-
54. Policy C2 provides:
“Countryside Beyond the Green Belt
In the Countryside beyond the Green Belt defined on the Proposals Map and outside rural settlements identified in policy RD1, the countryside will be protected for its own sake.
Building in the open countryside away from existing settlements will be strictly controlled”.
55. … the Inspector erred in treating it as a policy which was not for the supply of housing, and in not considering the application of paragraph 49 NPPF …
67. In this case, the Inspector concluded that policy RD1 was a policy for the supply of housing, within the meaning of paragraph 49 NPPF. It provides:
Within the Rural Settlement boundaries identified on the Proposals Map, the Council will only permit appropriate development which is well related in scale and location to the existing development and which [and there then follows five conditions]” …
71. Where a policy is considered out-of-date, there is a presumption in favour of granting planning permission for sustainable development. By paragraph 14 of the NPPF, the presumption operates in the following way when decisions are made:
“where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
• Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies and Framework taken as a whole; or
• Specific policies in this Framework indicate developments should be restricted”.
72. In his conclusions on planning balance … the Inspector reversed the test to be applied under paragraph 14 NPPF … I accept the Claimant’s submission that the Inspector erred in applying the wrong test.
Mrs Justice Lang concluded as follows:
86. I have concluded that the Inspector erred in:
(e) not treating policy C2 as a policy for the supply of housing within the meaning of paragraph 49 NPPF;
(f) his approach to policy RD1, having decided that it was a policy for the supply of housing within the meaning of paragraph 49 NPPF;
(g) Mis-stating and mis-applying the relevant test in paragraph 14 NPPF.
She, therefore, quashed the Inspector’s decision and sent it back to be considered by a different Inspector.
Unfortunately, by Ministerial statement issued on 22 July 2015, Baroness Williams of Trafford stated as follows:
Following a recent High Court Judgment (Wenman –v- Secretary of State …), we are today making a technical adjustment to paragraphs 49 and 159 of the National Planning Policy Framework.
From today, those persons who fall within the definition of ‘traveller’ under the Planning Policy for Traveller Sites, cannot rely on the lack of a five year supply of deliverable housing sites under the National Planning Policy Framework to show that relevant policies for the supply of housing are not up-to-date. Such persons should have the lack of a five year supply of deliverable traveller sites considered in accordance with Planning Policy for Traveller Sites.
Planning Policy for Traveller Sites sets out how ‘travellers’ … accommodation needs should also be assessed. Those who do not fall under that definition should have their accommodation needs addressed under the provisions of the National Planning Policy Framework.
To read the Judgment in this case, see: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2015/925.html&query=wenman&method=boolean