Cooper, R (on the application of) v Ashford Borough Council & Anor, Court of Appeal - Administrative Court, June 24, 2016, [2016] EWHC 1525 (Admin)

Resolution Date:June 24, 2016
Issuing Organization:Administrative Court
Actores:Cooper, R (on the application of) v Ashford Borough Council & Anor

Case No: CO/6597/2015

Neutral Citation Number: [2016] EWHC 1525 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 24 June 2016

Before :


(Sitting as a Deputy High Court Judge)

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Between :

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Mr Andrew Parkinson (instructed by Richard Buxton Env & Public Law) for the Claimant

Mr Giles Atkinson

(instructed by Council's Head of Legal & Democratic Services) for the Defendant

The Interested Party did not appear and was not represented

Hearing date: 24 May 2016

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JudgmentMr John Howell QC :

  1. This is an application for judicial review of the grant of planning permission by Ashford Borough Council for four gypsy pitches and associated development at Milee, Nickley Wood Road, near the village of Shadoxhurst in Kent. The Claimant, Mr Raymond Cooper, who lives nearby, was given permission to bring this claim by Lang J.

  2. On behalf of the Claimant, Mr Andrew Parkinson, contends that the Council's decision to grant planning permission was flawed on four main grounds. (i) First he contends that the Council failed to apply section 38(6) of the Planning and Compulsory Purchase Act 2004. That enactment requires the determination of applications for planning permission to be made ``in accordance with the [development] plan unless material considerations indicate otherwise''. The Council failed to do so, so Mr Parkinson submits, since no judgement was reached on whether the proposed development accorded with a number of key development plan policies or with the development plan taken as a whole. Alternatively he submits that there were no adequately reasoned findings on these points or that any findings that there were, were flawed. (ii) Secondly Mr Parkinson contends that the Council failed to distinguish the development proposed from an earlier proposal (for which they had refused planning permission in January 2014) to station eight caravans at Milee to accommodate an extended gypsy family and failed to have regard to the importance of consistency in planning decisions. (iii) Thirdly he contends that there was a failure to have regard to what he submits was the fact that the grant of permission would set a precedent for the development of further gypsy and traveller sites causing cumulative harm to the semi-natural ancient woodland in the area. (iv) Finally he contends that the Council failed to have regard to the question whether the second condition which they imposed on the grant of planning permission, limiting occupation of the site to gypsies and travellers, would achieve its stated objective and whether a personal permission should have been imposed instead.


  3. Nickley Wood Road is a private road in the countryside about one mile south of Shadoxhurst. There is a sawmill at the entrance to the road which also serves other businesses, thirteen dwellings and a number of authorised gypsy and traveller sites.

  4. The land at Milee, for the development of which the Council gave planning permission (``the site''), is to the south of Nickley Wood Road. It is regarded in planning terms as being in the open countryside. It falls within an area that is covered by a blanket Tree Preservation Order and designated as ancient woodland. It also lies on the edge of Shadoxhurst Woods and Pastures, an 86 hectare Local Wildlife Site, and in the Shadoxhurst Woods Landscape Character Area, where the policy is to conserve and restore the landscape.

  5. The site itself consists of a thin strip of land most of which is to the rear of an exiting authorised gypsy and traveller site on Nickley Wood Road that has three permitted pitches. The parts of the site proposed for development consist of an existing hard-surfaced trackway and lawful hard-surfaced and tarmacked areas. Access to Nickley Wood Road was proposed through the existing authorised gypsy and traveller site to the north. Both sites are owned by the Interested Party, Mr Michael May, who was the applicant for the planning permission impugned in this claim.

  6. On the south side of Nickley Wood Road, to the west of the site, there are other authorised gypsy and traveller sites. These are (i) Kialarney, for which the Council gave planning permission for a twin unit mobile home for a Romany and associated hardstanding in March 2012; (ii) Woodland Vale, for which planning permission for the siting of three traveller units was granted by the Council in August 2013; and (iii) Oakdrive, which has planning permission for two static units.

  7. The Claimant contends that there are other, unauthorised caravans stationed on sites north and south of Nickley Wood Road. Mr Parkinson stated, for example, that part of a site known as Woodside on the north side of the road has been in occupation unlawfully by travellers for between four and five years and that an application for planning permission for a holiday static caravan park on that land was withdrawn on October 27th 2015. He also pointed out that the owners of another site on the north side of the road, Bambridge Wood, have advertised the land for sale in three lots of 30, 5 and 5 acres, stating that they are semi-cleared and suitable for traveller use.


  8. On November 11th 2015 the Council granted conditional planning permission for the making of a material change in the use of the site so that it may be used for the stationing of four gypsy pitches with associated development and for the erection of a goat barn.

  9. The development proposed comprised three pitches to be provided on an existing area of hardstanding at the southern end of the site with single mobile homes, a detached dayroom and a pair of semi-detached dayrooms. The fourth pitch and an accompanying dayroom were proposed on an existing tarmacked area used for car parking by the occupiers of existing authorised pitches to the north. The goat barn was proposed on existing hardstanding in a cleared area on the eastern side of the access track.

  10. The decision to grant permission was taken on behalf of the Council by their Development Control Manager under delegated powers. She had been provided with an assessment (``the assessment'') and a recommendation to grant conditional planning permission by the Council's Case Planning Officer.

  11. Having identified relevant planning policies (including policies GP12 and EN32 of the Ashford Borough Local Plan and policies CS1 and CS 14 of the Local Development Framework Core Strategy) and having described the proposal, the relevant planning history and representations received, the assessment stated that:

    ``The main issues for consideration are:

    - the principle of the proposed development

    - gypsy status of the applicants

    - need for and provision of gypsy sites

    - sustainability

    - the impact of the development on visual amenity/impact on ancient woodland and TPO trees

    - the impact on the development on residential amenity

    - highway safety

    - other material considerations''

  12. In dealing with the principle of the proposed development, the assessment stated that:

    ``This application is subsequent to the refusal of an earlier planning permission under application 13/00980/AS which sought planning permission for use of a larger area of land for a gypsy site with the siting of 8 caravans. That proposal extended to a larger area of land to the south and south west of the current application site, onto previously undeveloped land. The current application is limited to the areas of existing hard surfacing which have been deemed lawful.

    Central Government advice contained within the NPPF provides concise government guidance with the presumption in favour of sustainable development to be seen as "a golden thread running through decision-taking". The Framework identifies that there are 3 dimensions to sustainable development - an economic role, a social role and an environmental role which should not be undertaken in isolation. The NPPF also states that Local Planning Authorities should recognise the intrinsic character and beauty of the countryside and that the planning system should contribute to and enhance the natural and local environment by protecting and enhancing valued landscapes. This is endorsed by Development Plan Policy.''

  13. When dealing with ``the impact of the development upon visual amenity/impact on ancient woodland and TPO trees'', the assessment stated that:

    ``The development will not be visible from Nickley Wood Road, there is existing well established and protected screening to all sides and there are no short term views into the site. As stated above, the site is TPO'ed ancient woodland and is on the edge of an 86 ha Local Wildlife Site. Unlike the proposal under the 2013 application, the current proposal does not result in the laying of additional hard surfacing at the site, will not result in the loss of trees and will not result in harm to the roots of those trees. Further, the development will not extend beyond the previously developed parts of the site. However, the use of the land, within this protected site, will be intensified and will result in harm to the wildlife and will prevent the re-establishment of species of flora and fauna in these areas. As such, a balancing exercise is required in terms of harm of the development and the benefits of the development.''

  14. Having addressed these and the other main issues identified in turn, the assessment's conclusion was in these terms:

    ``The main issues in this case are:-

    (a) The proposed development would contribute towards meeting the general need for gypsy sites in the Borough and as planning provision is still to be resolved, significant weight must be given in the decision making process to this.

    (b) Although within the open countryside, the site is located a mile from Shadoxhurst which is...

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