England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Sullivan)

		Royal Courts of Justice Strand London WC2 Friday, 12th October 2001

Friday, 12th October 2001

1. LORD JUSTICE PETER GIBSON: I will ask Keene LJ to give the first judgment.

2. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against a decision of Sullivan J in the Administrative Court. The applicant is a gypsy who had appealed to the Secretary of State against an enforcement notice served on him by the planning authority. The notice alleged that there had been a breach of planning control by the making of a material change of use without planning permission of land at The Hollies, Trimpley Lane, Shatterford, Bewdley, Worcestershire. The change of use was from agricultural to use as a residential caravan site. There seems to have been no dispute that there had been a breach of planning control.
3. The appeal to the Secretary of State was on grounds (a), (f) and (g) of section 174(2) of the 1990 Act, raising, therefore, issues as to whether planning permission should be granted on the merits and on the period for compliance and scope of the notice. The inspector who held the public inquiry rejected the appeal. He noted that the site was within the approved West Midlands Green Belt in the development plan and in an area of great landscape value where it was policy to safeguard the quality of the landscape. He set out in his decision the development plan policies relating to gypsy sites and made reference to national policy on such sites as set out in Circular 1/94. He recorded that Mr Smith's representatives accepted that a gypsy caravan site was not an appropriate development in the Green Belt. However, the applicant's case at inquiry was that an exception should be made in this case because of the inadequate provision of gypsy sites in the locality, his and his family's personal circumstances and their rights under the European Convention on Human Rights.
4. In his appraisal of the merits the inspector referred to his duty under section 54 A of the Act to make a determination in accordance with the development plan unless material considerations indicated otherwise. He noted that Circular 1/94 said that Green Belt land should not be allocated in development plans for gypsy sites, and he set out the normal policy: within the Green Belt there is a presumption against inappropriate development except where very special circumstances can be shown. He therefore saw the issue as being whether there were very special circumstances justifying an exception to Green Belt policy. He considered the health and educational needs of the applicant and his family. He also recorded that there were no vacancies on any gypsy sites in the district. He did not regard the fact that suitable land for a gypsy site outside the Green Belt might be expensive as amounting in itself to special circumstances. He recognised that dismissal of the appeal would interfere with the applicant's home and family life, but he sought to balance that against the legitimate aims as referred to in Article 8 of the European Convention. He said this:

"22.My conclusion is that there are clear cut objections to the alleged development on grounds of Green Belt policy. The continued use of the land as a caravan site in this elevated position would be a conspicuous feature in the landscape which would be harmful to the appearance and openness of this part of the Green Belt. The personal circumstances of the appellant and his extended family in such matters as health, education and ability to pay market rates for land, do not on the evidence before me constitute very special circumstances sufficient to overcome the strong policy presumption against inappropriate development in a Green Belt."

5. He therefore dismissed the appeal on ground (a) and subsequently dismissed the appeal on the other grounds as well. It will be seen from the passage which I have quoted that the inspector's decision turned not merely on the allocation of the site as Green Belt, but also on its particular characteristics as being in an elevated position so that the caravan site would be a conspicuous feature in the landscape.
6. There was then an appeal to the High Court under section 289 of the 1990 Act on a point of law. The appeal was heard along with three other somewhat similar appeals. Sullivan J dismissed Mr Smith's appeal, which had been brought on a number of grounds only one of which has been pursued before us. Before turning to it, it has to be recognised that the proposed appeal to the Court of Appeal would be a second appeal as, at least in substance, Mr Cottle who appears for the applicant recognises. It would therefore fall within section 55(1) of the Access to Justice Act 1999, as was made clear in respect of this type of appeal in the Court of Appeal decision in Clark v Perks, a decision handed down on 1st September 2000. It follows that permission to appeal to the Court of Appeal should not be granted unless this court considers that an important point of principle or practice is raised or there is some other compelling reason for the Court of Appeal to hear it.
7. The ground which Mr Cottle seeks to pursue is ground 3 in the Appellant's Notice. That reads as follows:

"The learned judge failed to hold that, while it is allowed the Second Respondent's development plan failed to comply with the requirements of DOE circular 1/94 at para 12 in particular, the Inspector failed to put this aspect in the balance in determining the Appeal (paras 8 and 22 of the Decision letter and 69 and 79 of the judgment)."

8. The background to that submission is of course the provisions of the development plan itself. There is a structure plan dealing with Hereford and Worcester which had policies concerning gypsy sites. One of those, G2, in particular set out certain criteria for the location of both public and private gypsy caravan sites. The local plan is the Wyre Forest District local plan, approved in 1996, which contained policies H18 and H19. The former of those two policies provided for the retention of seven existing gypsy caravan sites. Policy H19 set out certain criteria for the establishment of private sites, that is to say future proposals, sites which were not already in use with or without permission for gypsy caravan sites.
9. Paragraph 12 of Circular 1/94, a circular which deals with gypsy sites and planning, provides insofar as material for present purposes as follows:

"Local plans and Part II of unitary development plans should wherever possible identify locations suitable for gypsy sites, whether local authority or private sites. Where this is not possible, they should set out clear, realistic criteria for suitable locations, as a basis for site provision policies. They should also identify existing sites which have planning permission, whether occupied or not, and should make a quantitative assessment of the amount of accommodation required."

10. Mr Cottle argues that the inspector and Sullivan J reached a decision that the absence of policy as required by the circular could be treated as an aspect of need and in so doing they erred in law. He submits that local planning authorities should have proper policies on these matters. Those policies should be based on an up-to-date assessment of need, which is not the case here. He submits that when Circular 1/94 in paragraph 12 refers to a development plan containing "criteria for suitable locations", that means that the development plan should indicate particular parts of the district where sites might be found. In that respect again H19, it is said, does not comply. The basis of Circular 1/94, argues Mr Cottle, is that the planning authority should meet the land use requirement of gypsies, and that is particularly important now that the statutory duty on local authorities to provide gypsy sites has been removed.
11. It will be noted that the premise of this submission is that the local plan in this case failed to comply with Circular 1/94. The inspector did not find any such failure when he arrived at his decision, nor indeed can I find any indication in his report or in the applicant's written statement of case for the inquiry that the local plan was said to be in breach of Circular 1/94. The argument advanced at the inquiry was that there was a lack of gypsy sites in the district and that the local plan, instead of allocating further sites beyond the existing seven, used a criteria based policy. The case seems to have been argued essentially in terms of the need for further provision. It was also emphasised that the assessment carried out by the authority of need was out of date and that, of course, was dealt with as part of the case of need.
12. To my mind the passage already quoted from Circular 1/94 makes it clear that a development plan may comply with the national guidance by containing criteria for suitable locations rather than by allocating specific sites for future provision. It may, of course, do both, but in my judgment it cannot be said to be in breach of the national guidance because it adopts a criteria based approach. I do not accept the argument which has been advanced this morning that the criteria for suitable locations must indicate particular geographical parts of the planning authority's district before they can be said to be criteria which comply with the circular. The criteria in policy H19 of this particular local planning authority are proper criteria which comply with Circular 1/94.
13. It is true that paragraph 12 of the circular requires a development plan to make a quantitative assessment of the amount of accommodation required. It seems from this local plan that there was a county-wide assessment and a strategy which formed the basis of local plan policy. That assessment could be criticised as being out of date because it does seem to have been somewhat historic in this case, and it was criticised by the applicant's representative on such a basis at the inquiry. But quantitative assessments do relate essentially to issues of need. That must be so because the picture will change from time to time, and however regularly development plans are reviewed, they will never be up to the minute in their assessment of the supply of, and the need for, further gypsy sites.
14. It is accepted that the inspector dealt with need. In my view he was entitled to adopt that approach on this particular aspect of the case. In addition the inspector was not, so far as I can see, asked to find that the development plan failed to comply with Circular 1/94 and he made no such finding. He treated the argument as one of need and in the circumstances which I have described he was entitled to do so. That being so this submission now advanced on behalf of the applicant is doomed to fail.
15. For my part I can see no prospect of success in this appeal, far less can I see any important point of principle or practice being raised or any other compelling reason for this matter being allowed to proceed to a full hearing. In those circumstances one is bound to refuse this renewed application.
16. LORD JUSTICE PETER GIBSON: Apart from acknowledging the force and clarity of Mr Cottle's submissions to us this morning, there is nothing which I would wish to add to my Lord's judgment with which I am in entire agreement.
Order: Application refused. Detailed assessment of the applicants costs.