Judge quashes refusal of consent for Gypsy/Traveller site and remits planning appeal for redetermination

His Honour Judge Jarman KC, sitting as a judge of the High Court, said in his judgment that the inspector wrongly found that four caravans would be located in an area known as ‘flood zone 2’ when in fact they were either outside a risk area or in the lower risk ‘flood zone 1’.

The claimants brought the case against the Secretary of State for Housing, Communities and Local Government and Crawley Borough Council.

They had originally applied unsuccessfully to Crawley for consent for six caravan pitches.

HHJ Jarman said there were two grounds argued before him. In the first, the claimants argued the inspector's risk assessment of flooding was fundamentally flawed because of her mistaken finding that the four touring caravans would be partially sited in Flood Zone 2.

A statement of common ground between the parties had though recorded that the caravans would be on hard standings outside ‘flood zone 2’.

In the second ground they argued that the inspector's conclusions on flood risks were irrational.

The court was told the caravans were moved onto the site in April 2021 and hard standings, amenity blocks, sheds, kennels and fencing were built, all without planning permission.

Crawley served an enforcement notice, which was unsuccessfully appealed and took effect in August 2022.

The claimants then appealed and a planning inspector granted permission for three years, but that was quashed by the High Court and remitted for redetermination, eventually reaching the inspector involved in the present dispute.

HHJ Jarman said Crawley and the Secretary of State argued the inspector was not bound to accept the statement of common ground and it was not clear the caravans in the revised layout plan were in flood zone 1.

Crawley did not resile from the statement of common grounds and accepted to a point that there was a mistake but said the position was not clear.

The judge said: “I do not accept those submissions. In my judgment the statement of common ground…was clear, and the inspector's finding, which was at odds with that statement, was also clear.

“The inspector did not reject the statement of common ground, or give any reason for rejecting it. The statement of common ground was an uncontentious fact before the inspector. Alternatively the position of where the caravans were, or were to be sited if permission were granted, was objectively verifiable.”

He rejected the idea that confusion was caused by the claimants not providing clear plans to show the siting of the caravans.

“Again I do not accept those submissions,” the judge said. “There was no need for the claimants to do that given the clear agreement in the statement of common ground.”

The judge said it was clear from the decision letter read fairly as a whole that the inspector proceeded on the basis that some of the caravans were partially in flood zone 2, thereby increasing their risk of flooding.

Crawley and the Secretary of State argued that had the inspector not made the error over siting the outcome would inevitably have been the same.

HHJ Jarman said this was incorrect and “the first ground in my judgment is made out. That is sufficient in my judgment for the decision to be quashed.

“I do not come to that conclusion lightly given the troubled planning history of this site. But the mistake was fundamental to the inspector's evaluation of the planning balance.”

On the second ground, HHJ Jarman concluded: “The high threshold of irrationality is…made out.”

This concerned the inspector’s failure to assess the detail of the safety issues and weigh them in the balance.

HHJ Jarman concluded that the decision under challenge should be quashed and the appeal remitted once again for redetermination. “I do not come to this conclusion lightly, given that this will be the second redetermination, but I see no alternative.”

Mark Smulian