High Court rejects challenge to council declining to determine planning application despite change in national Green Belt policy

Tim Corner KC, sitting as a deputy High Court judge, said Reigate and Banstead Borough Council had not failed to take account of a material consideration in a dispute over a Traveller site, and its refusal was neither irrational nor disproportionate.

Reigate & Banstead decided under section 70C of the Town and Country Planning Act 1990 to decline to determine the claimant’s planning application for a Gypsy/Traveller caravan site at Salfords.

The claimant argued the council failed to take into account a change in national Green Belt policy and so its decision was irrational, and the impact on her human rights was disproportionate.

The court heard that, without planning permission, the claimant and other occupiers undertook works changing the site to use as a Gypsy/Traveller caravan site,

A retrospective application for planning permission was submitted but refused and the council later issued two enforcement notices requiring the unauthorised use to cease and restoration of the land.

Reigate & Banstead won an interim injunction to prevent further unauthorised works. which led to an order that remains in place.

The claimant had appealed but a planning inspector refused this, finding the site was within a sensitive part of the Green Belt terms and that the claimant had undertaken the unauthorised development intentionally.

This meant she had to clear and restore the site and cease occupation in the late spring of 2024, but she and the families involved remain on the site

When Reigate  & Banstead received the claimant’s application for retrospective consent it declined to determine it as the failed appeal had dealt with planning merits and changes to national planning policy did not compel reconsideration.

The council said it had no unmet need for Traveller pitches, and the claimant had failed to demonstrate why an alternative decision should be made

Counsel for the claimant argued the decision under section 70C was unlawful because the council failed to have regard to fundamental changes to national policy since the enforcement notices were served and the appeal failed.

Reigate & Banstead said there was a compelling case to use section 70C as the site is subject to an injunction, and the unauthorised development has been in place for more than three years.

Mr Corner said Section 70C gave local planning authorities a broad discretion, and while that was challengeable on grounds of irrationality “a claimant who challenges a decision on that ground has a high hurdle to surmount”.

He added: “I do not think that in making the decision the council failed to take account of an obviously material consideration.

“It follows that I do not think the decision was irrational. In any case, even if there was an obligation to take account of the claimant's case as to changes in policy and need, the council did take account of the claimant's case and, particularly in the context of section 70C, there was no obligation to say more about the changes than was said in the decision.”

He said the council had struck a fair balance between the rights of the families involved and the wider community.

The families “must have been aware since the inspector's [decision] that they might have to leave the site”.

Commenting on the case, Melissa Murphy KC, of Landmark Chambers, who acted for the council, said Mr Corner had applied the Court of Appeal’s decision in Moran and noted the subsequent case of Connors to make it “clear that there is no such obligation [to reconsider] even where the planning merits have changed, for example because of a change in policy”.

Mark Smulian