England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2 Tuesday, 9th October 2001

Tuesday, 9th October 2001

1. LORD JUSTICE JUDGE: This is a renewed application for permission to appeal the decision of Sullivan J dated 22nd June 2001 following refusal by the single judge, Keene LJ. This case is one of four cases decided on that date. All four cases were concerned with the provision of caravan sites for gypsies.
2. I gratefully take what I am now about to say from the judgment of Sullivan J. Mr John Evans is a gypsy. In April 1999 he and his family occupied agricultural land in Wigan as a caravan site. The local planning authority issued an enforcement notice on 19th April of that year requiring cessation of that use within seven days. Mr Evans appealed. An inspector held an inquiry on 16th November. The outcome was that Mr Evans failed in the main thrust of his appeal; however his time for compliance with the enforcement notice was increased from seven days to nine months.
3. Having read the passages from the Inspector's decision in the judgment of Sullivan J I must record that it is difficult to do justice to the carefully considered decision without setting all his reasoning processes out in detail; but this is an application for permission, and I do not think it necessary to do so. Nevertheless, it is relevant to refer to his analysis of the planning policy. He said at paragraph 8:

"Both appeals [there was a second appeal which does not arise for consideration today by a different individual] involve caravan sites for occupation by gypsies, although the wording of the enforcement notice allegation does not make this explicit. If permitted, this could be the subject of an appropriate condition. Circular 1/94: Gypsy Sites and Planning indicates that the planning system should recognise the need for accommodation consistent with gypsies' nomadic lifestyle, and aim to secure provision appropriate to this while protecting amenity. This guidance emphasises also the role of the development plan in gypsy site provision. Policy H2(D) of the adopted Wigan UDP (1996) is a criteria based policy intended to govern proposals for gypsy caravan sites to ensure the adequacy of provision in the Borough. Criteria include the site not being required for other land-uses identified in the Plan, and the effect on the amenity of adjoining land."

4. This policy is criticised in the application. It is in brief terms, and reads:

"The Council will ensure that adequate provision for gypsy caravan sites is made in the Borough. The acceptability of sites for such a use will be considered by reference to the following criteria:

(a) the site not being required for other land-uses identified in the Plan;

(b) the development being able to be accommodated in site planing terms;

(c) the effect on the amenity of adjoining land."

5. The text of the decision continues:

"There are currently two sites for gypsy caravans in the Borough but the situation will be monitored to ensure that adequate provision continues to be made in the future. The policy also identifies the principal criteria to be used for identifying suitable locations for gypsy caravan sites."

6. Circular 1/94 Revised Guidance provides:

"This Circular revises guidance on the planning aspects of sites for caravans which provide accommodation for gypsies. ... Its main intentions are --

- to provide that the planning system recognises the need for accommodation consistent with gypsies' nomadic lifestyle;

- to reflect the importance of the plan-led nature of the planning system in relation to gypsy site provision...

- to withdraw the previous guidance indicating that it may be necessary to accept the establishment of gypsy sites in protected areas, including Green Belts."

7. The Inspector continued:

"9. The appeal sites are within the statutory Green Belt as now incorporated into the UDP on the basis of its Policy OL1. The Green Belt in the vicinity encompasses open land along the base of the valley of the River Douglas. It reaches as far to the south-west as a railway line, and washes over roadside housing and a commercial depot site along the frontages of Martland Mill Lane. [That is of course close to the site occupied by the applicant and his family]. UDP Policy OL2 closely reflects the terms of national guidance for Green Belts set out in PPG2 (1995), which re-states longstanding advice that there is a general presumption against inappropriate development within them, and that such development should not be approved except in very special circumstances. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. Policy OL2 indicates the changes in the use of land will not be approved unless they maintain openness and do not conflict with the purposes of including land in the Green Belt."

8. There is a heavy burden on those who, like the applicant, seek development on Green Belt land, and that was accepted on his behalf before the Inspector, who records the concession that:

"The development was inappropriate to a Green Belt on the basis of OL2 and PPG2 guidance, and that very special circumstances needed to be shown."

9. The Inspector then went on that for this appeal the main issue was:

"Whether the circumstances are sufficient to justify planning permission for inappropriate development in the Green Belt in the light of the above local and national policy considerations and the accommodation needs of gypsies in the area."

10. In the end, at the heart of Mr Watkinson's interesting argument, is his contention that there is a lack of consistency between Policy H2D and the relevant circular, and that the policy fails adequately to comply with the requirements of the relevant circular. It is I think unnecessary to say anything about those submissions, interesting as they are, because this is simply an application for permission to appeal and I should not want to say anything either way which might be used in a subsequent case at which the same sort of point is sought to be deployed. The difficulty, as it seems to me, with Mr Watkinson's interesting submission, is that, even if he were right, it does not come anywhere near producing a likely prospect of success in an appeal by his clients.
11. I return to the fact-finding decision. The Inspector found, having considered all the evidence in some detail:

"In overall terms I consider that the caravan site use of the land shown on the notice plan has had a seriously harmful impact on the openness of this tract of Green Belt. It lies in a highly prominent and sensitive location close to main roads and the canal towpath where the finger of Green Belt is narrow, and in visual terms separation is largely provided by the single field between the river and the canal..."

12. The Inspector then assessed the accommodation needs of gypsies, drew the facts before him together and acknowledged that there was evidence of some limited "shortfall in the supply within the area of the authority". He acknowledged that that would weigh in favour of Mr Evans. He also recognised that some of the difficulty which Mr Evans' family "group" had to face, there was evidence that they were unwelcome; and that posed some real problems to them. He then went on:

"Caution has to be exercised in attributing great weight to this factor, as the addition of personal considerations such as this to the process could radically undermine the basis of seeking to match supply with demonstrable need for sites where important planning constraints such as Green Belt policy apply."

13. He continued by looking at the Green Belt site. He was unable to find any sufficient evidence to reach the conclusion that there was no realistic occupation option of securing other land "less harmful to planning policy than the appeal sites."
14. He referred to the personal considerations which applied to Mr Evans and his children, and he concluded:

"Notwithstanding the doubts which I have concerning the adequacy of gypsy site provision in the area, and the personal circumstances of occupants of the appeal site, my conclusion is that the preservation of the openness of what is a very prominent and sensitive tract of Green Belt is of overriding importance."

15. It seems to me that those findings are measured, reached after careful analysis of the material circumstances, and represent a quite explicit and certain conclusion, and in the end it is fatal to this present application.
16. Keene LJ, refusing the application, said that the appeal was dismissed:

"Because of the prominence of this particular site and the damage caused by the development in a narrow strip of statutory Green Belt land in a sensitive location... Given the strength of the planning objections to development on this particularly prominent and narrow piece of Green Belt land the appellant could only have succeeded before the Inspector by demonstrating that there was an overriding need in the area which could not be met on any other land with less damage to Green Belt purposes and visual amenity. This he failed to do. The Inspector's judgment on this cannot be faulted in law."

17. Mr Watkinson realistically realised the difficulties that he faced. He appreciated the force of the findings in relation to the Green Belt issues. Nevertheless he contended that the points relating to the policy and the circular raised serious issues worthy of consideration of this court. As I have said, I do not propose to say anything which might be used hereafter in support of, or against, his submission.
18. As it seems to me there was compelling evidence which amply justified the Inspector in expressing himself as he did, and even if Mr Watkinson is right about non-compliance and lack of consistency, they would not have any bearing on the decision reached in this case.
19. Accordingly, even if he were to succeed with his arguments the end result would be that the appeal would have to be dismissed.
20. In those circumstances I would refuse this renewed application.
21. MR JUSTICE BODEY: I agree.
(Application dismissed; detailed assessment of legal aid costs).