England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th December 2012

Lord Justice Sullivan:

1. This is a renewed application for permission to appeal against the order dated 22 March 2012 of Ouseley J dismissing the applicant's appeal against a decision by an Inspector appointed by the first defendant dismissing their appeals against an enforcement notice issued by the second defendant and also a refusal of planning permission by the second defendant for the use of a site at Heanley Lane, Hurley, as a gypsy caravan site. The Inspector's decision letter is dated 13 October 2010. In that decision letter, the Inspector dealt with two sites. Both of them were used as gypsy caravan sites. The western site was the larger of the two and contained seven plots. The eastern site, the site with which these applicants are concerned, is the smaller of the two sites and contains three plots.
2. In his judgment dated 22 March 2012 ([2012] EWHC 684 (Admin)), Ouseley J dealt with the challenges under sections 288 and 289 of the Town and Country Planning Act 1990 to the Inspector's decision in respect of both sites. This renewed application for permission to appeal is concerned only with the eastern site. So far as Ouseley J's judgment relates to the enforcement notice, the appeal is of course a second appeal. While it is true that the grounds do not identify any important point of principle or practice, or other compelling reason for the court to hear the appeal, so far as the appeal against the planning refusal is concerned, it is not a second appeal and so the question is whether any of the grounds which are amplified in Mr Masters' skeleton argument have a real prospect of success.
3. Although a number of matters are raised in the grounds and the skeleton argument, wisely before me this morning Mr Masters has put forward the two grounds which he contends have the greatest prospect of success, and indeed if those grounds did have a real prospect of success then he would not need the other grounds; they would be sufficient to justify allowing the appeal. The principal complaint is that the Inspector failed to deal separately with the eastern site and that, when considering the planning merits, he effectively rolled the two sites together. Ouseley J dealt with this complaint in paragraphs 9 to 39 of his judgment. For my part, I respectfully endorse his conclusions. There can be no question but that the department was entitled to hold an inquiry into both appeals; they were, after all, on adjoining sites. But I quite accept Mr Masters' submission that the Inspector was required to deal with the planning merits of each site. The question is whether he did so or whether he rolled them together.
4. The Inspector was certainly well aware of the need to look at each site individually, because he said in the very first paragraph of his decision letter that he dealt with the conjoined appeals relating to two separate but adjoining sites and, where possible, he had considered the matters common to both sets of appeals together. It seems to me that that is precisely what the Inspector did in this decision letter. The Regional Spatial Strategy was plainly common to both sites. The Inspector then dealt with the issue of gypsy status and planning policy. He dealt with the impact on the Green Belt and in that section dealt separately with the eastern and the western sites, although he concluded that both of them had an impact on the openness of the Green Belt. He then dealt with sustainability. So far as flood risk is concerned, Mr Masters complains that he looked at them together. But the point really goes nowhere partly because flood risk was not considered to be a serious objection at the end of the day and, secondly, because the Inspector gave perfectly sensible reasons for concluding that due regard would have to be had to the flood risk implications of these adjoining sites whether or not a flood risk assessment was required.
5. Moving on to the need for provision of gypsy sites, again it seems to me that the extent of the need and the extent of the provision were plainly matters that were common to both sites. The Inspector then dealt separately with the appellants' accommodation needs, dealing first with the eastern site and then with the western site, and reached an overall conclusion that substantial identifiable harm to the openness and visual amenity of the Green Belt had been established and weighed heavily against both of the two proposals, so that in both cases the question was the same: were there very special circumstances which justified granting permission for inappropriate development in the Green Belt that would be harmful to the openness and visual amenity of the Green Belt? Again, it seems to me there can be no possible criticism of that approach. Essentially, the question was the same in respect of both sites, although of course the answer might be different.
6. Having dealt with other considerations that were common to both developments, the Inspector then expressly dealt with other considerations that were peculiar to the eastern site and other considerations that were peculiar to the western site. The criticism made by Mr Masters really focuses on the Inspector's conclusions in paragraph 73 when he said that, having assessed the other considerations in the balance, they did not clearly outweigh the identified harm to the Green Belt, so that very special circumstances to justify inappropriate development in the Green Belt did not exist. It is submitted that there the Inspector rolled the two sites together.
7. It seems to me that that conclusion could be drawn only if one focused on the opening sentence of paragraph 73 alone and completely ignored the rest of the decision letter. The letter must be read as a whole, and it is plain that by this stage the Inspector has identified the degree of harm to the Green Belt that would be caused by each of the two sites, the western and the eastern site. It was not precisely the same. The western site was more harmful in visual terms. And he has also assessed the particular personal characteristics and needs that might have constituted very special reasons for allowing development in the Green Belt in respect of each site and has recognised that those considerations were different. In reality, therefore, what paragraph 73 is saying is that in both cases the degree of harm done by the proposed development to the Green Belt was not outweighed by the very special circumstances of the occupants of that particular site, be it the eastern or the western.
8. It seems to me, therefore, that the first ground of appeal has no real prospect of success if the decision letter is read as a whole.
9. The second ground is that the Inspector erroneously considered the question of temporary planning permission. There is no doubt that the Inspector did deal separately and distinctly with the issue of temporary planning permission and indeed he cited the relevant advice in circular 1/2006. That circular gave advice as to the approach to be adopted to the grant of temporary planning permission where there was an unmet need but a reasonable expectation that new sites were likely to become available at the end of a certain period. Obviously, in order to avoid temporary disruption, if sites were going to become available after a period, consideration should be given to granting a temporary permission. The passage particularly relied on by Mr Masters in the circular is this:

"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 Inspector did not give substantial weight to the unmet need, but he explained why he did not do so. There is no question of him not realising what the advice in the circular was, because he says in terms in paragraph 78:

"The substantial weight that should be given to unmet need in considering temporary planning permissions is therefore not present in these cases."

Moreover, it is plain that he realised that different considerations applied to the grant of temporary, as opposed to permanent planning permission, because he said:

"I acknowledge that the residential occupation of the sites for a temporary period should be considered to be less harmful to the Green Belt, but this does not override my finding."

The Inspector explained at the start of paragraph 78 why he considered that substantial weight should not be given to unmet need and it seems to me that whether or not he should do so was entirely a matter of planning judgment for him.

10. Again, it is necessary to read the whole of the decision letter in order to understand the Inspector's approach to the matter, because it is plain from paragraph 79 that he dealt with the issue which the advice in the circular is intended to address, that is to say the hardship that would be suffered and the disruption that gypsy families would suffer if they were moved off a site shortly before new sites were going to become available and effectively cast out on to the road unnecessarily, because a temporary permission would tide the position over until the new sites were available.
11. The Inspector dealt with that matter by allowing the ground (g) appeal to the extent of granting 18 months for compliance with notices. He referred to his decision in that respect in paragraph 79 and in paragraph 84, where he dealt with the ground (g) appeal. He made the point expressly that 18 months for compliance would be more reasonable, because it would enable alternative accommodation and site provision arrangements to be progressed and avoid the adverse consequences of displacement, at least in the short term, and it would also ensure that the occupiers' accommodation needs were taken into account in the subsequent site identification as part of the development plan process up to 2012.
12. So that is the manner in which the Inspector addressed that issue. It seems to me that that was an eminently pragmatic solution in planning terms. Of course, there is a difference between a temporary planning permission, say 18 months, and an extension for compliance under ground (g) for 18 months. But in terms of relieving hardship and preventing unnecessary displacement from the site onto the roads before alternative sites are available, the two methods achieve precisely the same object. For those reasons, it seems to me that, once one reads the decision letter as a whole, it is plain that the grounds of challenge to it do not have a real prospect of success, notwithstanding the arguments put by Mr Masters on behalf of the applicants.
13. So for those reasons, I refuse this renewed application for permission to appeal.

Order: Application refused.