Whitcher – v – Secretary of State for Communities and Local Government
In this case Mr Whitcher, a Romani Gypsy, sought planning permission for himself and his family on his land in the area of the New Forest National Park.
A lot of the case centred on policy CP13 in the National Park’s Core Strategy and Development Management Policy which stated that:-
Proposals for the provision of permanent and/or transit accommodation to meet an established need of Gypsies, travellers and travelling show people will be supported with the National Park where it can be demonstrated that there is a need for the site to be located within the National Park…
A second Public Inquiry took place and the Inspector refused planning permission to Mr Whitcher. The Inspector stated:-
I interpret the first part of the policy as having two elements as described by the NPA. National guidance in the PPTS…advises that local planning authorities should “prepare and maintain an up-to-date understanding of the likely permanent and transit accommodation needs of their areas over the lifespan of their development plan”….To satisfy the second element of policy CP13 proposals that come forward should show a need to be within the National Park. Each proposal has to be assessed individually. The policy is not prescriptive but such an assessment would be likely to include the activities of the proposed occupiers within the National Park, their employment and their family circumstances (paras 9 and 10 of the Decision Letter).
The Inspector continued:-
I have no doubt that Mr Whitcher satisfies the planning definition of a Gypsy and that his need for a site is real. His unauthorised occupation of the appeal site for some two years is evidence of this. However, this need is a general need for a site and not a locational need. The Whitcher family has strong historical connections with the National Park and some members of the wider family live within its boundaries but this in itself does not amount to a locational need (para 16).
At para 34 the Inspector stated:-
For the first 40 years of his life Mr Whitcher was brought up in, and travelled from, a series of conventional dwellings located outside the National Park. He lived with Ms Foster in a conventional dwelling until family relations became strained and he moved out. I am not persuaded that there is the same imperative for a caravan site base as there would be for someone who has always lived in a caravan. In these circumstances, although Mr Whitcher has a cultural preference for a caravan site, I consider his accommodation needs attract only moderate weight.
Mr Whitcher appealed to the High Court against this decision. Mr Justice Dove refused his appeal. Mr Justice Dove stated as follows:-
I am unable to find….any cogent evidence that the Inspector applied a test other than that which was based upon a correct understanding of policy CP13… The conclusion that the need demonstrated by the appellant is a general rather than a specifically locational need is also founded upon the conclusions…based on the evidence that the claimant had been brought up outside the National Park and, apart from brief spells, always had a bricks and mortar base outside the National Park prior to moving to the appeal site (para 27). …..
….the Inspector had appropriate evidence and reached rational factual conclusions in relation to why the particular circumstances of this claimant did not meet the second locational element of need in policy CP13 (para 29).
…..
In the circumstances there was no legal flaw in the Inspector concluding that substantial weight should attach to the policy harm which he had identified by virtue of the breach of policy CP13 (para 30).
…..
…..the Inspector’s factual conclusion was not that the claimant had or would live full-time in bricks and mortar accommodation as an alternative but rather that he had in the past, and could in the future, have as a base bricks and mortar accommodation from which he would travel both into the National Park and further afield staying away from conventional accommodation for periods whilst he was travelling….the Inspector was including within the balance not the opportunity for the claimant to abandon altogether his nomadic lifestyle and live permanently in conventional housing but rather that he might revert to his previous lifestyle, which he had undertaken for many years prior to acquiring the appeal site, whereby he had a bricks and mortar base but spent substantial time away from that base travelling and enjoying a nomadic way of life (para 31).
I am unable to find any flaw in the approach which the Inspector took to whether or not a temporary planning consent should be granted. He set out clearly…that the lack of a 5 year supply of sites was a significant ministerial consideration. He therefore clearly took account of the provisions of paragraph 25 of [Planning Policy for Traveller Sites]. Whilst he did not mention it again directly it was not in my view necessary for him to do so since it is clearly embraced by the conclusion he reaches…that the harm which would arise as a result of a temporary permission ‘would not be outweighed by other considerations’ (para 33).
CLP are seeking leave to appeal to the Court of Appeal against this decision.
The solicitor on this case for CLP was Parminder Sanghera and the barrister was Stephen Cottle of Garden Court Chambers.
Whitcher v SSCLG and New Forest NPA [2015] EWHC 3001 (Admin): http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2015/3001.html&query=whitcher&method=boolean