Samuel David Launchbury v Secretary of State for Housing, Communities and Local Government & Ors

The claimant seeks permission to bring a statutory review of the decision of the planning inspector made on 29 July 2025 pursuant to the provisions of section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”).

The inspector, Laura Cuthbert BA (Hons) MSc MRTPI, appointed by the Secretary of State for Housing, Communities and Local Government (“the Secretary of State”) allowed the appeal of Charmaine Davies (“Ms Davies”) against the decision of Wychavon District Council (“Wychavon DC”) to refuse permission.

The Decision Letter (“DL”) dated 29 July 2025 sets out the reasons for the decision to allow the application to develop a six pitch gypsy/traveller site with associated hardstanding, fencing and installation of Package Treatment Plant on the land on the west side of Murcot Road, Chilswickham, Broadway, WR12 7HR (“the site”).

The claimant lives in a cottage approximately 150/200m away from the site with his children. I have seen photographs of the site and the claimant’s cottage. The area is predominantly open countryside with a few dwellings and agricultural buildings.

Ms Davies applied for planning permission for the six pitch gypsy/traveller site with associated hardstanding, fencing and installation of a package treatment plant on 5 August 2024. Wychavon DC issued its decision refusing planning permission on 18 September 2024.

Ms Davies appealed to the Secretary of State pursuant to the provisions of section 78 of the TCPA 1990. The hearing of the appeal and the site visit both took place on 10 June 2025. The decision allowing the appeal and granting permission to Ms Davies was promulgated on 29 July 2025.

The claimant issued his challenge to that decision pursuant to the provisions of section 288 (4B) of the TCPA 1990 within six weeks of the decision and sought an injunction and Aarhus costs protection. The challenge was first considered on the papers by Robert Palmer KC sitting as a Deputy High Court Judge. He determined that Wychavon DC and Ms Davies be added respectively as the second and third defendants, that Aarhus costs capping applied pursuant to the provisions of CPR r.46.26 with the claimant’s liability for the defendants’ costs capped at £5,000 and the defendants’ liability for the claimant’s costs capped at £35,000. The injunction sought was not granted, but that injunction is now longer sought as the works that Ms Davies had started on the site have been halted.

Permission to bring the statutory review was refused on the papers and has been renewed orally before me. While I had expected to give an extempore determination after hearing the helpful submissions of Mr Leigh, acting on behalf of the claimant, and Mr Fullbrook, acting on behalf of the Secretary of State, the timing of the other hearings before me meant that was impossible. These are therefore the reserved reasons for my determination. As the claimant himself was unable to attend the hearing, it is of benefit that these reasons are in writing as the claimant will be able to consider them in full.

While both the claimant and the Secretary of State made submissions on the renewed application for permission, neither Ms Davies nor Wychavon DC have taken any active role in these proceedings and have not added to the submissions in this case.

The claimant contends that the Secretary of State’s inspector erred in law in a number of ways. It is averred that she relied on her own judgment to reach a conclusion that it is incomprehensible or irrational and that she failed to explain how her findings aligned with the facts of the appeal and planning policies. It is averred that traveller sites in open countryside should be very strictly limited and that development proposals should include both landscape and visual assessments covering the mass and purpose of the proposed development. Having accepted that the location of the development was unsustainable, it is averred that she determined that the development of the traveller site should be allowed in a way which was contrary to local and national policy (particularly with respects to both landscape and biodiversity net gain).

The Secretary of State resists the granting of permission to bring a statutory review on the basis that the claim is nothing more than “an attempt to express disagreement with various planning judgments which were reached by the Inspector. It fails to articulate any actual errors of law and is not arguable.” It was said in the course of submissions that the inspector is “experienced”. That submission does not assist me. I have no evidence before me as to whether she is experienced or not, and what I am considering is one particular decision and I am sure that the Secretary of State would not suggest that the planning judgment of a lesser experienced inspector should carry less weight.

The decision letter dated 29 July 2025 provides that the inspector rejected the original description of the proposal as being “partly retrospective”. That could have had an impact upon the biodiversity requirements but it was agreed by the parties that no part of the proposal was retrospective, and that the description of the development as being for “6no Gypsy/Traveller site with associated hardstanding, fencing and installation of Package Treatment Plant” was more accurate.

There was no dispute but that all future occupants of the site would fall within the definition of “gypsies and travellers” so that the Planning Policy for Traveller Sites (PPTS) is a material consideration. It was further noted that from April 2024, Biodiversity Net Gain (BNG) is a national requirement and mandatory for all applicable developments. It was discussed at the hearing and was noted to be relevant to the determination of the appeal proposal and a “main issue in my decision.”

The inspector cited the main issues as being:

The inspector determined that the site was not suitable. She noted that it was in open countryside and that policy 2 of the South Worcestershire Development Plan (2016) (SWDP) provides that in the open countryside, development will be strictly controlled and be limited to development specifically permitted by other SWDP policies. SWDP 17 is a policy against which the suitability of planning applications for traveller sites are assessed and under part C(i) of SWDP 17 reference is made to whether the site is within, or on the edge of, a town or a category 1, 2 or 3 settlement. She recognised that SWDP 17 had to be read alongside SWDP 4 which provides that proposals minimise demand for travel and offer genuinely sustainable.

At the appeal hearing it was agreed that the appeal site was not located within, on the edge of, or in close proximity to a town or a category 1, 2 or 3 settlement and that the two closest settlements at Murcot and Childswickham (respectively 700m and 990m away) offered no or little services – no services at Murcot and a church, village hall, public house and playground at Childswickham. Significantly, there were no demarcated or lit footpaths and the Murcot road had a 60mph speed limit. The frequency of the buses and the difficulties with accessibility meant that the inspector concluded that the occupants of the site would need to travel by private vehicle to access nearby facilities and services such as health services, shops and schools and with “no genuinely sustainable travel choices available such as walking, cycling or public transport.”

Having taken into account all the matters put before her by the appellant to support the development, the inspector concluded that “the proposed development would not be in a suitable location, having regard to the development strategy for the area and the access to local services and facilities, as well as having regard to the PPTS. The proposal would be contrary to the overall objective of Policy SWDP 17 as well as Policies SWDP 2 and SWDP 4”.

Having determined that the proposal would not be in a suitable location as it would not be within, or on the edge of, as town or Category 1, 2 or 3 settlement, and did not offer genuine sustainable travel choices, the inspector determined that these matters would result in significant harm.

The inspector noted that the appeal site and the surrounding area is a largely flat landscape with open fields, interspersed with field boundary hedgerows and fences with a large agricultural building to the sough and some small stable buildings and other equestrian uses to the north. She noted sporadic housing and that the immediate surrounds were not devoid of built form.

She noted that the caravan site would have some visual impact and that SWDP 17 states that a consideration of assessing the suitability of traveller sites is whether any significant visual impact on the landscape can be mitigated. She acknowledged that the shape of the appeal site would make “a well-designed site much more difficult to achieve” with the layout proposing “6no. plots with mobile homes positioned side by side.” She took the view that leaving a central area as a turning circle would “help to break up the apparent ‘cramped’ nature of the proposal.” While she acknowledged that she had not had the benefit of any landscape or visual impact assessments to demonstrate the likely impacts of the proposals on the surrounding landscape, she said that she had been able to make a planning judgement and found that there would be no harm to the landscape character and appearance of the area, having regard to the PPTS.

The inspector set out that the site fell predominantly within flood zone 1 with part of western side of the site lying within flood zone 2 due to the close proximity to the Badesley Brook. Having regard to tables 2 and 3 in the Planning Practice Guidance (PPG) the proposal constitutes a highly vulnerable development in flood zone 2 and therefore should meet the sequential test and the exception test. The inspector concluded that a revised layout, suggested by or on behalf of Ms Davies at the hearing, would move a touring caravan and touring caravan out of flood zone 2 and would no longer be a highly vulnerable so that an exception test was no longer required.

Schedule 7A of the TCPA introduces a statutory framework for BNG applying to all non-major development submitted on or behalf of an application submitted on or after 2 April 2024. It therefore applies to this application and every grant of planning permission is deemed to be granted subject to the Biodiversity Gain Condition (BGC) requiring that at least a 10% increase in biodiversity value is met.

The Preliminary Ecological Appraisal (PEA) for the application site confirmed that the total net gain achieved in regard to habitat units would be 0.46% - a very small net gain compared to that which is required.

The inspector referred to the PPG indicating that it would generally be inappropriate to refuse an application on the grounds that the biodiversity gain objective would not be met but that consideration needed to be given to whether the BGC could be discharged in another way. Although she recognised that the proposal provided insufficient information on how the BNG could be achieved, either by offsite biodiversity gains or by the purchase of statutory biodiversity credits, the inspector determined it was not a reason to refuse planning permission.

The inspector set out that it was agreed in the Statement of Common Ground that Wychavon DC is unable to demonstrate a 5 year supply of gypsy/traveller sites with a shortfall of 12 pitches and gave that unmet need significant weight in her decision; she attached limited weight to the emerging policies and allocations limited weight and considerable weight to the lack of suitable and alternative sites. The inspector also referred to the personal circumstances of Ms Davies and the other intended occupiers of the site and how it had been said at the hearing that while the children’s “existing preschool and school are some distance from the appeal site… if the appeal was allowed, the children would likely move to a school closer by.” She gave substantial weight to the family having to revert to a roadside existence and that a “settled base would bring stability and avoid the stress of a roadside existence.”

In dealing with any application for planning permission, the local planning authority (in this case Wychavon DC) “shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations” (section 70(2) of TCPA 1990); and if regard is to be had to the development plan for the purpose of any determination to be made “…the determination must be made in accordance with the plan unless material considerations indicate otherwise.” (see section 38(6) of the Planning and Compulsory Purchase Act 2004). The decision maker therefore has to consider the development plan and identify any provisions relevant to the question and make a proper interpretation and consider whether the development does not accord with the development plan. The decision maker needs to assess the points in the plan that support the proposal and considerations that point in the other direction. The decision maker also has to identify all the other material considerations relevant to the application and to which he should have regard and assess the weight to be given to all the considerations: “…having weighed those considerations and determined those matters he will require to form his opinion on the disposal of the application.”

In Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, Sullivan J (as he then was) set out that, which is very well appreciated in this sphere, “an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task.” The approach to be taken by the court when there are challenges to decisions by inspectors has been authoritatively summarised by Lindblom LJ (as he then was) in St Modwen Developments Ltd v Secretary of State [2017] EWCA Civ 1643:

“In my judgment at first instance in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC754 (Admin)(at paragraph 19) I set out the “seven familiar principles’ that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. These are:

(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph …

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration …

(3)

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided it does not lapse into Wednesbury irrationality” to give material considerations “whatever weight [it] thinks fit or not weight at all” … And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision …

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision maker …”

In South Bucks DC v Porter (No2) [2004] UKHL 33 per Lord Brown, at para 36:

“… The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The defendant contends that the challenge to the decision letter is nothing more than an attempt to express disagreement with various planning judgments reached by the inspector and fails to articulate any actual errors of law.

The claimant does not challenge the inspector’s determination that the development is not in a suitable location and that, as a consequence, the development would result in “significant harm”. The inspector found that the site is not sustainable, contravening the local development plan policies and the NPPF.

The claimant’s challenge is with respect to the determinations on landscape, flooding and biodiversity. The claimant contends that this is not a merits challenge (as categorised by the Secretary of State) but that either individually or collectively her determinations on these matters are irrational and that she made determinations on issues where she did not have the evidence to base those conclusions on such that she erred in determining the permission appeal in favour of Ms Davies.

The claimant challenges the inspector’s decision with respect to landscape when she determined that there would be no harm to the landscape character and appearance of the area, having regard to the PPTS, saying that she was able to come to a planning judgment despite the lack of a landscape or visual impact assessment. It was a matter for the inspector to determine whether she had sufficient information and she determined that the lack of the assessment it “did not make a judgment impossible”. It is clear from the decision letter that the inspector considered the surrounding, largely flat, landscape with open fields, and that she was aware that there was an agricultural building and small stable buildings nearby and that there is some sporadic housing. She cannot be criticised for her finding that the immediate surroundings of the development site were not devoid of built form. Further, she accepted that caravan sites “will have some visual impact on the character and appearance of a countryside location” having considered the site’s characteristics and the impact of the development on those characteristics and having had the benefit of a site visit. The claimant says that he does not seek to challenge the inspector’s ability to make a planning judgment but rather contends that the inspector focussed on the massing of the development and failed to take into account the design, appearance and purpose of the development. It is clear that the inspector was very well aware of the purpose of the development, and she records that polices 21 and 25 of the South Worcestershire Development Plan (SWDP) require development and their landscaping schemes to be appropriate to and integrate with the character of the landscape setting. What the claimant seems to contend is that she has failed to enable the parties to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’ (see Lindblom LJ in St Modwen), in this case landscaping. However, in my judgment she does do that within the 10-paragraph section on landscaping. It is plainly a conclusion that the claimant disagrees with, put it is a planning judgment she was entitled to reach. The landscaping scheme provided that a thick hedge would be planted and the inspector acknowledged that it would take time for the landscaping to become established and that it would not screen the development during the winter months. Exercising her planning judgment, as she was entitled to, the inspector determined that there was no need for a substantial enclosure. She concluded that the proposal would not harm the landscape character and appearance of the area and, while that is a determination that the claimant disagrees with, she was entitled to reach that conclusion. It was not irrational and was sufficiently explained and clearly fell within the exercise of her planning judgment.

With respect to the flood risk, the inspector noted that the proposed development site lies predominantly within flood zone 1 but that part of the western side of the site, part of plot 1, lies within flood zone 2 due to the close proximity of Baddesley Brook. The inspector was satisfied with the suggestion made by the appellant that the touring caravan and the static caravan, partially, in flood zone 2 could be moved into the area of the site within flood zone 1 by including an appropriately worded condition. With respect to the revised layout she took into account the concerns of the Wychavon DC that it would prejudice third parties by reason of the impact of the proposal in terms of its visual impact and concluded that the caravans could be positioned on the site with the lowest risk of flooding without harming the character and appearance of the area. The claimant’s complaint that the inspector failed to consider “the effect of squeezing” another mobile home on the rest of the site is plainly not made out by the contents of the decision letter where she expressly dealt with that issue.

It is agreed between the parties that there is a requirement for a development to deliver a 10% Biodiversity Net Gain (BNG) in order to comply with the provisions of section 90A and schedule 7A of the TCPA. This proposal did not comply with that requirement as the preliminary ecological appraisal (PEA) alongside the statutory biodiversity metric confirmed that the total net gain would be 0.46%. As set out by the inspector the “development cannot commence until the BGP is approved.”

As is set out in the National Planning Practice Guidance (PPG):

“The statutory framework for biodiversity net gain involves the discharge of the biodiversity gain condition following the grant of planning permission to ensure the objective of at least 10% net gain will be met for a development. The determination of the Biodiversity Gain Plan under this condition is the mechanism to confirm whether the development meets the biodiversity gain objective. Development may not be begun until the Biodiversity Gain Plan is approved.

Given this, it would generally be inappropriate for decision makers, when determining a planning application for a development subject to biodiversity net gain, to refuse n application on the grounds that the biodiversity gain objective will not be met.

However, decision makers may need to consider more broadly whether the biodiversity gain condition is capable of being successfully discharged.”

Ms Davies accepted before the inspector that she had not secured any offsite biodiversity gains or the purchase of any biodiversity credits but, as stated, the development could not commence without the Biodiversity Gain Plan being approved. There was no need for that to be included expressly in the conditions as a consequence of its separate statutory basis and upon it being “deemed to apply to every planning permission granted for the development of land”. The PPG provides that local planning authorities are “strongly encouraged” not to include the biodiversity gain condition in the conditions to a planning permission. The inspector was correct not to include it as a separate condition in her decision letter.

I have had the opportunity to consider this challenge in depth and I am clear that, while the claimant is seeking to support the claim on the basis that it is a challenge to the rationality of her decision, this really is a merits challenge. I can appreciate the claimant’s concerns, but the decision was ultimately one for the inspector’s planning judgment and she appropriately took into account all the matters that she needed to and as a consequence this renewed application for permission must fail.

The costs order made by the Deputy High Court Judge on 28 November 2025 is upheld.