England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(MR JUSTICE BURTON)

		Royal Courts of Justice Strand London WC2
		Monday, 20th May 2002

Monday, 20th May 2002

1. LORD JUSTICE BUXTON: This is an appeal from a decision of Burton J given on 9th October 2001 in a planning matter. The planning dispute appears to have been of somewhat lengthy nature, and was between the Tunbridge Wells Borough Council ("the Council"), who are the appellants here, and a Mr Thomas Clarke and his wife. Mr and Mrs Clarke are (and I use this term purely for purposes of identification at the moment) gypsies. The planning authority seeks to enforce planning regulations and rules against them in respect of their stationing of a mobile home in an area that in normal circumstances would not be, and properly would not be, regarded as appropriate for such accommodation.
2. The matter has been before inspectors on at least two occasions. The matter in contention before Burton J was an appeal decision by one of her Majesty's Inspectors given on 28th March 2001 of an appeal by Mr and Mrs Clarke against a refusal to grant planning permission, the development proposed being the continued use of the land in question the stationing of the caravan for residential use by the Clarke family. The Inspector was conscious that he had to give consideration, not only to what I would call normal planning considerations, but also to the rights of the appellant and his family under Article 8 of the European Convention on Human Rights; and also potentially under Article 14 thereof. He dismissed the appeal in terms to which we will come.
3. Burton J in a detailed and, if I may be permitted to say so, helpful judgment reviewed in considerable detail not only the Inspector's determination, but also the implications for the gypsy and Romany culture of the claims made by Mr Clarke. He concluded in paragraph 44 of his judgment that the Inspector's decision had to be quashed and be remitted to him because of inadequate reasoning. It is important to note that it was for that reason, and no other, that Burton J quashed the decision.
4. In considering the very difficult question of how the potential family and cultural rights of gypsy and Romany populations interact with and are affected by the municipal planning laws of this country, clear guidance has been given very recently by the Strasbourg Court in the case of Chapman v United Kingdom 10 HBRC at 48. In that judgment, starting at paragraph 90, the court sets out the jurisprudence and learning in Convention terms in respect of gypsy population. In paragraph 97 attention was drawn to the fact that the number of sites that gypsies can find acceptable, because they find it disagreeable (as the court put it) to live in a house, is limited; and their opportunity for living in accordance with their traditional ways and within the planning regime is thus restricted. The court then said this at paragraphs 98 and 99.

"98. The court does not, however, accept the argument that, because statistically is greater than the number of places available in authorised gypsy sites, the decision not to allow the applicant gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of art. 8. This would be tantamount to imposing on the United Kingdom, as on all the other contracting states, an obligation by virtue of art. 8 to make available to the gypsy community an adequate number of suitably equipped sites. The court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the framework convention, and domestic legislations in regard to protection of minorities, that art. 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on states.

99. It is important to recall that art. 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the contracting states many persons who have no home. Whether the state provides funds to enable everyone to have a home is a matter for political not judicial decision."

5. What was engaged in this case, therefore, as would be engaged in any planning decision that has to confront the extremely difficult problems that I have already indicated, was on the one hand the nature of the Clarkes' desire and wish to continue living in a caravan and their opposition to living in a conventional home; and on the other hand the obligation of the local authority properly to apply and enforce planning control.
6. The reason why there has to be close scrutiny of the reasons given by applicants for opposing conventional housing is that it is necessary to form a view, as best the court can, of whether those reasons are personal to themselves, however intense they may be; or whether they go further and are based on a belief or understanding or integral part of their cultural identity as gypsies or Romanies.
7. The Inspector, having looked at the site and considered that in purely planning terms it would be intrusive both in visual and in land use terms, went on to consider the personal circumstances of the Clarkes, as he properly needed to do. He set out his findings in that respect in paragraphs 17 to 21 of his decision letter. Since those findings are of some importance in the light of the judge's judgement I will set them out verbatim:

"17. The appellant rightly points out that national policy continues to favour private gypsy sites and that no new council sites have been provided since 1992. In the country as whole, there are no vacancies on official sites while the existing private sites in the district tend to be small and generally occupied by single families. On the other hand, in January 2000, there were 112 unauthorised sites of which six were in Tunbridge Wells and there is therefore a clear need for additional provision. It should also be recognised that a very high proportion of the district's land is protected which, if the urban areas are added, leaves few options available. The difficulties are further aggravated by the fact that the Council's Policy H5 is criteria based and, contrary to current national advice (PPG 3 and PPG 12), it does not identify locations that would be suitable for gypsy sites.

18. The appellant argues that his personal circumstances are equally relevant. It is accepted that the Council has offered permanent accommodation, but Mrs Clarke, who also has close family in the area, has never lived in a conventional house and found the prospect distressing. The appellant would be unable to afford the likely cost of a private pitch, even if one were available, and the only alternative for his family would be an illegal roadside site with no facilities. That family includes two children who require stability, particularly for their education, and the older of the two, who is almost three, has recently joined a nursery school. In that respect, the judgment in Basildon DC v SSE & Others (21 December 2000) is important. The court upheld a decision of the Secretary of State in which the harm caused by gypsy caravan sites in the Green Belt was considered to be outweighed by the need for stable educational facilities for the younger children of the families concerned.

19. In terms of need, the best evidence available to me is the lack of vacancies on lawful pitches, together with the number of unauthorised sites. In Tunbridge Wells however, the number of such sites, which include the appeal site, is a very small proportion of the total for the county and it was said for the Council that it has been at about that level for some years. It seems that the greatest concentrations of unauthorised sites are in the vicinity of Dartford and Canterbury. I have to say therefore that I do not consider that the general need for gypsy sites in the borough's area is such that, of itself, it should outweigh the policy objections to the proposal.

20. On the related matter of the lack of a policy which identifies locations for sites, the appellant also contends that this would justify at least a temporary permission until the Council has had the opportunity of responding to current national guidance. I agree with the Council however, that the advice in PPGs 3 and 12 is not new because Circular 1/94 also recommends that, wherever possible, local plans should identify locations suitable for gypsy sites (para 12). It is clear from the supporting text to Policy H5 of its Local Plan that the Council had regard to the circular when formulating that policy and that it adopted a criteria based approach specifically because much of the Plan area is protected and considered to be unsuitable for gypsy sites. On that basis, I do not believe that there can be any certainty that a review of the Plan would follow a different course.

21. I turn therefore to the appellant's personal circumstances. It is unfortunate, in my view, that the appellant felt unable to accept the offer of permanent housing. However, it is not unknown for gypsy families to find that such accommodation would represent an unacceptable change in their lifestyle, and I have no reason to doubt the evidence of Mrs Clarke in that respect. On the other hand, I do consider that the offer of that accommodation does detract somewhat from the appellant's contention that the only alternative to the appeal site has been an illegal roadside pitch. It is also relevant to note that, on the evidence, the offer (by High Weald Housing Association) was for a property in Benenden which is only a short distance from Cranbrook. Furthermore, it was made in May 1999 and, at that time, the appeal against the enforcement notice had been dismissed."

8. Against the background of those findings the Inspector went on to indicate in paragraphs 24 and 25 how he considered Article 8 impacted on the present case. He said this:

"As regards the submissions made under Article 8, I recognise that dismissal of the appeal would result in an interference with the appellant's home and private and family life. However, that interference must be balanced against the public interest in pursuing the legitimate aims stated in the Article, particularly the economic well-being of the country (which includes the preservation of the environment). In my opinion, the objection to the development that has taken place on the appeal site are serious and could not be overcome by granting a temporary planning permission, or one subject to other conditions. I consider that the public interest can only be safeguarded by the refusal of permission and that, in all the circumstances, such a decision is necessary in a democratic society in furtherance of the legitimate aims stated. They do not place a disproportionate burden on the appellant and I therefore consider that dismissal of the appeal would not result in a violation of his rights under Article 8.

25. Having decided that any interference with the appellant's rights under Article 8 would be proportionate to the legitimate aim of preserving the environment, I can also find no evidence of a violation of his rights under Article 14. I have accepted that the appellant is a gypsy, but there is nothing to suggest that he would suffer discrimination as a result of the appeal being dismissed in comparison with a person of any other status who might wish to establish a similar use in a comparable location."

9. In his judgment the judge, having set out in some detail the facts and background, and of course referred to the importance that the courts place on the specialist expertise of inspectors, turned to the way in which Articles 8 and 14 are engaged in this case. He accepted (and it is not challenged as I understand it) that the Clarkes held appropriate status as gypsies. That was relevant in the judge's view in a number of ways. He said this at paragraph 29 of the judgment:

"Secondly, if in relation to an ordinary resident applying for a similar planning application there were no suitable alternative accommodation, it would be so decided by an Inspector and that factor, ie the availability of alternative accommodation, would thus not be taken into account against him. The question here must be whether the availability, and/or the refused offer, of unsuitable accommodation should have been held against this Appellant.

30. Thirdly, in my judgment, in certain appropriate circumstances it can amount to a breach of Articles 8 and 14 to weigh in the balance and hold against a Gypsy applying for planning permission, or indeed resisting eviction from Council or private land, that he or she has refused conventional housing accommodation as being contrary to his or her culture."

10. Then the judge said that in such circumstances would be where for instance it was held against an observant Christian or Muslim that they refused to engage in practices that are contrary to their religion, such as working at certain times or eating certain foods.
11. The judge then continued as follows:

"33. Sixthly, of course, a person may have Gypsy status without all the cultural trappings, beliefs, tenets or way of life of a Gypsy, just as Jews, Muslims, Hindus or Christians may not subscribe to, or comply with, all the tenets of their faith or religion. In order for the issue to be arrived at with which I have to deal, the person must satisfy the Inspector that he and/or his family do indeed subscribe to the relevant tenet or feature of Gypsy life in question here, namely that he or she genuinely has, and abides by, a proscription of, and/or an aversion to, conventional housing: to bricks and mortar. Many Gypsies, certainly many Romanies, as I understand it, do not, and are not, prepared to live in bricks and mortar, but many, perhaps even many Romanies, may well do or are prepared to do so, and each particular person or family must establish the position to the satisfaction of the Inspector.

34. Seventhly, if such be established then, in my judgment, bricks and mortar, if offered, are unsuitable, just as would be the offer of a rat infested barn. It would be contrary to Articles 8 and 14 to expect such a person to accept conventional housing and to hold it against him or her that he has not accepted it, or is not prepared to accept it, even as a last resort factor.

35. Eighthly, this does not mean that in such a case planning permission must or will be granted. An authority or an Inspector may still, having considered the planning factors, and the personal circumstances of the applicant or appellant, including the fact that there is no accessible or alternative site or suitable accommodation, refuse planning permission. Equally even if planning permission were granted it may be subject to conditions intended to reflect and to respond to any change in the existing factors of Gypsy status, including itinerance: for example, one limiting the proportion of the year for which the caravan could be stationed."

12. Mr Ground for the local authority expressed a concern at that analysis on the judge's part. He said that it appeared that if the conditions posited in paragraph 33 had been fulfilled, then the Inspector and the local authority were prohibited by Articles 8 and 14 to take into account what otherwise they would take into account: that is to say, a refusal of conventional housing on the part of the applicant. I for my part think that that is far too rigid a reading of what Burton J was saying. The judge, as it seems to me, was saying that where Article 8 was engaged, and engaged at the level of intensity that he had described in paragraph 33, then it would not be enough for a local authority simply to say that conventional housing had been available and had been refused. The authority would have to go on, as the Inspector would have to go on, to consider the personal circumstances of the applicant in that light, and weigh them, as in every case, against the planning considerations: that being an operation envisaged by and engaged in Article 8.2. That the judge thought that is demonstrated by his paragraph 35, when he says in terms that the fact that a refusal of conventional housing does not conclude the matter against the applicant does not of course mean that in such a case planning permission must be granted. If I may say so, that approach on the part of the judge is entirely in accord with the approach of the European Court of Human Rights in paragraph 98 of its judgment in Chapman.
13. The ground upon which the judge decided this case and determined that the matter must be remitted to the Inspector was that he was unclear as to what the Inspector had concluded in respect of whether the Clarkes had what the judge described as "a settled and immutable antipathy to conventional housing rooted in their gypsy culture"; and also unclear in his reasoning as to how the findings that he did make about the Clarkes' attitude impacted on the problem that he had to decide. He said this at paragraph 43 of his judgment:

"It certainly appears to me unclear as to which way the Inspector would have decided; whether what he called the 'somewhat of a detraction' in paragraph 21 did indeed serve to minimise for him the problem of the personal circumstances of the claimant, so as to bring the balance down on the one side rather than the other, or whether, in any event, the power and strength of the planning circumstances in this case in the interests of the public as a whole would have brought the weighing scales down against the planning application, even if there had been no previous offer and, in terms, it was stated that the likely consequence was indeed an illegal roadside pitch."

14. He then went on to say in paragraph 44 that when the matter was remitted:

"The decision will need to be made afresh on the issue of Gypsy status, then on the question of conventional housing, and whether reference to its availability would, on the facts, be in breach of Articles 8 and 14; and if it be ruled out, then whether planning permission should or should not be granted and if granted be permanent or temporary, conditional or unconditional. The reality here is that either the Inspector impermissibly took into account legally irrelevant considerations or, at any rate, that, by virtue of the erroneous approach that was taken in this informal hearing, he made insufficient findings for me to be sure that he did not take into account irrelevant considerations. In those circumstances the decision should be quashed. As I have indicated, it does not follow that planning permission will be granted."

15. Mr Ground criticised that last passage as saying that the judge had determined that the offer of conventional housing was in any event irrelevant. Read in the context of the judge's previous explanation of how the matter should be dealt with I do not think that is a fair criticism. What the judge seems to me to be directing the Inspector to, and in my respectful judgement rightly directing the inspector to, is a careful examination of the objections of the Clarke family to living in conventional housing in order to determine the extent to which Article 8 is truly engaged, and the nature of its engagement by the combination of their gypsy identity and their opposition to conventional housing. Only when the Inspector has made that determination in clearer terms than he adopted in his present letter will it then be possible for him properly to engage in the balancing consideration that Burton J envisages in his paragraph 35 and that the European Court of Human Rights envisages in its paragraph 98.
16. I would, therefore, dismiss the appeal. I consider that the judge was right to be dissatisfied with the standard of reasoning in this case and it is right that the matter should be remitted to the Inspector. This was a case where a Convention right was potentially engaged and in such cases a more intense scrutiny of the facts upon which that right is asserted needs to be engaged in before the court can indulge in the balancing exercise that Article 8.2 imposes on it.
17. LORD JUSTICE LAWS: I agree that this appeal should be dismissed for the reasons given by my Lord.
18. MR JUSTICE DOUGLAS BROWN: I agree.
(Appeal dismissed, Appellants's costs to be assessed in accordance with the Community Legal Service (Costs) Regulations 2000).