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Council wins permission for judicial review over shortfall in sites for travellers

Swale Borough Council has won permission to take the Secretary of State for Housing, Communities and Local Government to judicial review over a dispute concerning whether the borough has sufficient Travellers’ sites.

An inspector ruled that it did not if the 19-pitch Brotherhood Woodyard site were disregarded since it was not in use for this purpose, when he gave temporary permission for its use by Travellers.

He said this exclusion meant that Swale lacked sufficient pitches, but area planning manager Rob Bailey told Local Government Lawyer that the council’s position was that there were enough pitches in the borough even without this site.

In the Queen’s Bench Division Planning Court CMG Ockelton, sitting as a Deputy High Court judge said: “The council’s position was and is that it complies…a table of the sites identified as deliverable over the five-year period was before the inspector, and includes calculations on the phasing of deliverability over a five-year period and over the 14 years to the end of the current local plan in 2031.”

He said the assessed need was for 61 pitches to 2031 and Swale said it had anyway granted planning permission for 63 pitches so no shortfall arose.

Swale challenged the inspector over his decision to disregard the Brotherhood Woodyard site, failed to pay proper regard to a recent decision on the Old Half Acre site - in which another inspector had implicitly accepted that it was meeting its requirements - and that the inspector erred in his conclusion that Swale was not meeting its requirements.

The judge said: “I am wholly unpersuaded that it is arguable that the approach the inspector took to deliverability was one which was unlawful.”

But he added: “Although it is not arguable that the inspector erred in his conclusions in relation to the Brotherhood Woodyard site, it is arguable that he erred in his conclusion that disregarding the Brotherhood Woodyard site entailed a finding that there was a shortfall in the five-year supply.”

Judge Ockelton said he would not have granted judicial review on the Old Half Acre site alone but did so as an additional ground here as “the reason why those making planning decisions ought to have recent similar decisions in mind is that to do so may promote consistency and certainty”.

He went on: “In these circumstances it is, I think, just arguable that he should have drawn attention to the fact that he was departing from another or other previous decisions to the contrary.”

Mark Smulian

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