ON APPEAL FROM QUEEN'S BENCH DIVISION, DIVISIONAL COURT
(MR JUSTICE CRANSTON)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE PATTEN
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THE SECRETARY OF STATE
FOR COMMUNITIES AND LOCAL GOVERNMENT
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Ms Sara Shiekh and Mr Stephen Whale appeared on behalf of the Respondent.
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Lord Justice Pill:
"45. Advice on the use of temporary permissions is contained in paragraphs 108 – 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.
46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay."
"Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that intention, or because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified. For example, permission might reasonably be granted on an application for the erection of a temporary building to last seven years on land which will be required for road improvements eight or more years hence, although an application to erect a permanent building on the land would normally be refused."
"59. Turning to the possibility of a limited period planning permission, similar considerations apply, except that the duration of the harm to the area would be limited. Although the application was for full planning permission, it was indicated that a limited period planning permission would be acceptable to the current occupiers (though not to the proposed additional occupiers) in the context of the advice in the Circular. The Circular deals with situations where there is an unmet need and no available site provision but where, at the end of the period, there is a reasonable expectation that sites will become available through the DPD process. The Circular advises that in such cases consideration should be given to the grant of a temporary permission, and that substantial weight should be given to the unmet need.
60. In this case, there is an agreed unmet need for sites, although the Council argues that this may be met, in whole or in part, by the grant of planning permissions during the emergence of the PDP. Despite the lack of clarity regarding the DPD position at the end of any temporary period, the unmet need for sites and other circumstances are important considerations. However, at this stage it is unclear what effect the DPD process will have on site provision, as it is not currently clear if additional sites will be needed in the light of the Council's argument regarding existing and future private sites. Under these circumstances, there is no reasonable expectation of a change in circumstances within a definite and foreseeable period.
61. The facts in favour of the proposal have to be balanced against the significant harm to the area which would result from the grant of planning permission – even for a limited period. The objections to the proposal are serious and could not be overborne by granting a limited period permission and/or a permission conditioned in any other manner. There are serious environmental objections to this proposal, and these can only be safeguarded by dismissing the appeal. I consider that the refusal of limited period planning permission is a necessary and proportionate response in the circumstances and hence would not represent a violation of the rights of the appellant and the other intended occupiers."
The Inspector added, at paragraph 62, that, in the 2005 decision relating to a wider area including the appeal site, and also in a very recent decision in relation to a site adjoining the appeal site, the Secretary of State had refused permission on Green Belt grounds.
"In this case, only Mr and Mrs Doran are on the appeal site and there is an unmet need for them although considerable progress has been made and is being made towards meeting that need. The DPD process is underway and it is expected that a site allocations DPD for gypsies and travellers is expected to be in place by 2011. To that extent it can be seen that the preconditions for a temporary permission for Mr and Mrs Doran are met. However, the matter does not end there."
"32. Having regard to Circular 11/95 referred to in paragraphs 45-46 of Circular 01/06 temporary permission is not appropriate where the harm is unacceptable (see paragraph 109). As is clear from the Council's evidence in this inquiry and indeed the SoS's previous assessment of harm -- there is harm to amenity. That harm is not acceptable. This is a case where temporary permission is not therefore appropriate notwithstanding the contents of paragraphs 45-46 of 01/06."
Those paragraphs relate to the consideration of temporary permission on the merits.
"33. In terms of unmet need – it is also noteworthy in that context that even on the EIP figure of 50 the former South Bedfordshire district council's area [now inherited by the council] -- the Council is regularly making vast progress in meeting that need. At the time of this inquiry 32 pitches have been provided. It is likely before the determination of this appeal that further pitches will be granted permission to meet need. Therefore, the unmet need itself is diminishing and accordingly it is proper to have regard to the progress the Council has and is making in this context when considering the weight to give to unmet need.
34. Overall, unmet need is diminishing. Having regard to the significant harm to the Green Belt and character and appearance and lack of any material change in circumstances in that context since May 2005 it is submitted that the inquiry can properly conclude that this is a case where temporary permission is not acceptable."
"Against the above background it is considered that South Bedfordshire District Council has made considerable progress towards addressing the identified need and, indeed, has more than achieved that objective on an annualised basis. Indeed, without prejudice the decisions of the successor Local Planning Authority in relation to any anticipated applications, it is likely that additional pitches could well be approved in the next few months bringing the total close to, or even in excess of, the minimum number of fifty recommended in the EIP Panel Inspectors' Report."
"Under these circumstances there is no reasonable expectation of a change in circumstances within a definite and foreseeable period."
"These parts of the advice must also be seen in the context of the general intention to avoid gypsies becoming homeless through eviction from unauthorised sites where no alternatives are available."
An Inspector must have particular regard, it is submitted, to avoiding the risk of homelessness when it is known that pitches will be available in the foreseeable future.
"The objections to the proposal are serious and could not be overcome by granting a limited period permission and/or a permission conditioned in any other manner. There are serious environmental objections to this proposal, and these can only be safeguarded by dismissing the appeal."
Lord Justice Etherton:
Lord Justice Patten:
Order: Appeal dismissed