If we think the appeal decision is legally incorrect.
We can challenge the decision in the High Court if we think the Planning Inspectorate made a legal mistake.
I have studied the report to see if there are any indications that the Inspector has. A caveat – I’m not a legal expert, these are what I believe to be three possibilities that could be considered.
1 – Did the Inspector make a mistake applying NPPF150e?
A significant amount of time was devoted to the meaning of NPPF 150(e) and whether its exceptions list was an open or closed list.
RBK argued it was trite law that the list was closed whilst the appellants agent argued the inclusion of the words “such as” in the policy suggested the list was open.
Did the Inspector make an incorrect decision?
At a hearing for another appeal in 2019 an Inspector ruled that the exceptions list was not exhaustive.
With established case law agreeing with the appellants agent, it is difficult to argue the Inspector has made a mistake applying NPPF 150(e).
2 – Can a travellers site in the green belt be considered appropriate?
Planning Policy for Travellers Sites (PPTS) states that travellers sites in the green belt are inappropriate unless it is in the best interests of the children.
With two children each having just completed their first year in their new schools, the Inspector concluded that the best interests of the children justified the exception.
It is difficult to argue that the Inspector made an error interpreting this policy.
3 – Was the Inspector correct not to examine the merits of a personal or temporary permission?
In his decision report (paragraph 61) the Inspector stated that “permanent permission is warranted and, consequently, I have not examined the merits of a personal or temporary permission”.
PPTS is clear that travellers sites can only be considered appropriate when it is considered to be in the best interests of the children. When the children reach their 16th birthday though, this exception is surely no longer valid?
Failing to consider, for how long the best interests of the children would be valid, could be an acceptable reason for challenging the Inspector’s decision not to examine the merits of a personal or temporary permission.
Conclusion
It is difficult to see how any challenge could reverse the Inspector’s decision, but a challenge on point 3 could result in the decision ultimately being changed to a temporary permission for 10 years at a fresh hearing.
Next Steps
A challenge to a planning appeal decision needs to be made within 6 weeks of the date of the decision by an “aggrieved” party.
Persons will ordinarily be regarded as “aggrieved” if they made objections or representations as part of the procedure which preceded the decision challenged and their complaint is that the decision was not properly made.
The aggrieved parties for this case are:
- RBK
- The Malden Rushett Residents Association
- Any individual who made a representation for the appeal hearing
If any resident feels a challenge to be justified, I would encourage you to contact RBK in the first instance to encourage them to prepare a challenge and also ask the residents association to do the same.
A challenge needs to be submitted by 1st September 2022.
***UPDATE*** RBK will be challenging the decision.
From Procedural Guide: Planning Appeals:
L.7 How long will it take?
L.7.1 This can vary considerably. Many challenges are decided within 6 months, some can take longer.
L.9 Will a successful challenge reverse the decision?
L.9.1 Not necessarily. If a challenge is successful, the High Court will return the case to us for it to be decided again. This does not necessarily mean that the original decision will be changed or reversed. An Inspector may come to the same decision but for different or expanded reasons.
