England and Wales High Court (Administrative Court) Decisions

Ayres, R (on the application of) v Secretary of State for the Environment, Transport and Local Regions & Anor [2002] EWHC 295 (Admin) (19th February, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT OFFICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th February 2002

Mr Justice Silber:

Introduction

1. Mr. Leslie Ayres (“the claimant”) appeals under Section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the decision of the Secretary of State for the Environment, Transport and the Local Regions (“the Secretary of State”) dismissing the claimant’s appeal against a decision of Sedgmoor District Council (“the Council”) not to grant planning permission for the claimant to develop land at 4A Pedwell Hill, Ashcott, Bridgwater, Somerset (“the appeal site”) for use as a site for two mobile homes for gypsies and a touring caravan. The Council had initially refused planning permission and the claimant had then appealed to the Secretary of State pursuant to Section 78 of the 1990 Act. The Inspector appointed by the Secretary of State to hear and determine the appeal held a hearing on 19 June 2001 and he then gave his decision in a letter of 26 June 2001 (“the decision letter”) dismissing the appeal.
2. The claimant has now appealed and on the hearing of the present appeal, the Secretary of State and the claimant have both been represented and they have both adduced evidence. The Council has not been represented on the hearing of the appeal, but it has put in a witness statement made by one of its officers.

The background to the claimant’s application for planning permission

3. The claimant is a Romany gypsy and like his parents and grandparents before him, he has lived a nomadic style of life in and around the area of Somerset. He purchased the appeal site and contends that because of the lack of sites available for gypsy families throughout the country, he and his family need to use it as a firm base from which they can travel and which they can occupy during the winter months. The claimant submits that his application for planning permission had to be considered in the light of the lack of sites available for occupation within the district and the county, which means that he is entitled to special consideration in planning terms as indicated in Circular 11/95, to which I will return.
4. At the time of the decision letter, there was an extant enforcement notice on the appeal site in respect of caravans and mobile homes.
5. The claimant’s appeal to the Secretary of State was based on the need for gypsy site provisions in the area as well as being founded on the personal and humanitarian grounds of himself and his immediate family, who lived with him on the appeal site. This group consisted of the claimant and his wife, his children and his mother, Mrs. Elisha Ayres, who was 74 years of age at the time of the application and who suffers from arthritis and diabetes as well as very high blood pressure. She is a person, who has significant mobility problems and whose health would be in jeopardy if forced to continually move from site to site without having a lawful pitch upon which to place her caravan. The three children of the claimant were respectively aged 15, 13 and 8 years at the time of the appeal in June 2001.

The grounds of challenge to the Decision

6. The main ground of complaint made by the claimant was that the Inspector should have considered a proposal for a 5-year temporary condition in the light of all the relevant personal circumstances and of the European Convention on Human Rights. The decision letter was also criticised because of various other points, which as I understood Mr. Masters for the claimant, were supporting and not free standing points and I will consider then after dealing with the temporary provision point. Finally, I will deal with Mr. Masters’ point that the decisions of the Council, the Inspector and the Secretary of State to reject the claimant’s application for permission was disproportionate. I should record that on the hearing of this appeal, Mr. Masters abandoned what had been previously the claimant’s main point, which was that the Inspector had failed to determine the application properly in accordance with section 54A of the 1990 Act. Before considering these objections, it is necessary to summarise the reasoning of the decision letter of the Inspector, which is under attack on this appeal as being perverse.

The Decision Letter

7. The Inspector accepted that the claimant was a gypsy for planning purposes (paragraph 14) and he then considered his appeal against that background. He then examined the number of available authorised sites for gypsies and he concluded that as there was then “a level of under provision” for gypsy sites, this fact weighed in favour of allowing the claimant’s appeal (paragraph 17).
8. The Inspector considered the Settlement Policy and concluded that the proposal of the claimant “would amount to backland development“ and therefore “could not be regarded as sensitive in-filling of a small gap within a small group of houses” which would be acceptable under Planning Policy Guidance Note 7 “The Countryside and Environmental Quality and Economic and Social Development” (“PPG7”). As the appeal site lay within the Polden Hills Special Landscape Area, the Inspector took into account the fact that the existing mobile home on the appeal site could be seen from Pedwell Hill protruding above the boundary close-boarded fencing; he also noted that part of that mobile home breaks the skyline so that “it materially harms the character and appearance of the landscape”. The Inspector took the view that wherever another mobile home was positioned on the site, it would further erode the attractive local landscape judging from his observations. He concluded that the proposal of the claimant did not accord with the relevant development plan provisions (paragraph 21).
9. The Inspector also decided that there were material highway safety objections to the proposal of the claimant, which conflicted with the development plan provisions with regard to safe access (paragraph 26). He also noted that the noise and disturbance caused by the use of the gravel drive and parking area could be irritating. That constituted, according to the Inspector, a factor against allowing the claimant’s appeal, even though no relevant development plan policies had been drawn to his attention.
10. Significantly, the Inspector then considered whether the application under consideration on the appeal complied with that part of the Sedgmoor District Local Plan that dealt with gypsies and other travelling people, namely Policy H34, which “provides a criteria based policy with which to assess proposals” and stated that “small scale sites to meet genuine needs for gypsies and other travelling people [would] be permitted subject to [five] factors”. The Inspector concluded in paragraph 31 of the decision letter that the claimant’s proposals for the appeal site were “stretching what might be regarded as reasonable under criteria (a)” of that policy, which was that the site had to be “within a reasonable distance of local services (such as shops, schools and public transport)”. He also found that the claimant’s proposals failed to comply with criteria (b), (c) and (e) of that policy in relating to access, visual impact and the impact on local residential amenity. To show the significance of that finding, I must now state the requirements of those criteria.
11. Criterion (b) was that the site should have “the adequacy of vehicular access from the public highway, provision for parking and turning on site” while criterion (c) was that there should be “no adverse impact upon the appearance of the countryside and environment generally”. Criterion (e) was “the likely impact on the amenity of local residents with regard to the potential for noise and other disturbance, from the movement of vehicles to and from the site, the stationing of vehicles on the site and on site business activities”. These were important findings as was his conclusion also in paragraph 31 of the decision letter, that as no landscaping proposals had been submitted, it was not clear to him if criterion (d) had been satisfied as this required “appropriate landscaping proposals to enhance the established character of the countryside”. In essence, the Inspector concluded that of the five factors that had to be satisfied before permission would be granted, the claimant’s proposals failed to comply with four of them and in the absence of proposals, he could not determine if the fifth dealing with landscaping had been satisfied. Clearly these conclusions seriously undermined the claimant’s prospect of appeal.
12. The Inspector took the view that the conditions on which permission should be granted suggested by the Council for granting permission would not materially overcome the objections he had identified; as this is an important issue on the appeal, I will have to return to consider it in much greater detail. He therefore concluded there were “a number of sound and clear cut objections to granting planning permission” (paragraph 33). With those factors in mind, the Inspector stated in paragraph 32 that he would consider whether there were any material considerations of sufficient weight to offset those objections.
13. The first matter he looked at were personal circumstances, which he said, can only exceptionally outweigh general planning considerations (paragraph 34). Under this head, he took into account the health and problems of the claimant’s mother, which I have already described. He attached some weight to the fact that it would not be in her health interests if she were to revert to “life on the roadside”. He considered that the weight of this point was “moderated” by the fact that her need to stay on the appeal site is likely to be shorter than those of other members of the claimant’s family (paragraph 35). The Inspector also appreciated the claimant’s concern to see that Jason Ayres, then aged 8, was properly educated (paragraph 36). He accepted that a change of schooling would hinder his progress and that he would benefit from a settled period of schooling (paragraph 37). Nevertheless, the Inspector thought that point had to be “tempered” by the fact that Jason’s current educational need would be over some considerable time before the long-term personal permission actually being sought by the claimant would have expired while the educational needs of the claimant’s two older children would be satisfied at an earlier time (paragraph 38).
14. The Inspector then turned to consider other cases in which planning permission had been granted to see if there was any precedent which would assist him, but he concluded that in none of these cases were the circumstances closely analogous to the claimant’s appeal which had to be considered on its own merits (paragraph 42).
15. The Inspector therefore concluded that although there were material factors in favour of the appeal proposal, on balance, they were not sufficient to set off the planning related objections. He therefore proposed to dismiss the appeal (paragraph 43). The Inspector recognised that the claimant was entitled by law to live his chosen nomadic lifestyle and that the appeal decision could render the appellant and his family homeless. He accepted that this could be argued to amount to an interference with the claimant’s rights under Article 8 of the ECHR (paragraph 44).
16. The Inspector knew that there appeared to be no available alternative sites while the Council had indicated that it would not take immediate eviction action (paragraph 45). He considered that the Council’s actions and that his own actions in dismissing the appeal were not disproportionate and that there would be no violation of human rights under Article 8. The Inspector had reached that conclusion by balancing the rights of the claimant against the protection of the countryside in the public interest and other development plan considerations and that there was no proven or indicative evidence of discrimination against the claimant on the basis that he was a gypsy so as to amount to a violation of his rights under Article 14. He therefore dismissed the appeal. I now turn to the claimant’s submissions on his main point.

Permission for Five Years

17. The claimant contends that the Inspector acted perversely by not granting permission for the change of the use of the land to site two gypsy mobile homes for a period of five years. It is said that the Inspector having decided that the claimant’s mother and son were vulnerable, he should then have considered a time-limited permission. Mr. Masters for the claimant says that the Inspector should have reached that decision because of the circumstances of the case and, in particular, on account of four factors to which he attaches particular significance.
18. First, as the Inspector rightly regarded the claimant as a gypsy for planning purposes, Mr. Masters says that he should then have taken account of the appropriate planning policy affecting gypsies. Policy STR6 of the Structure Plan aims to strictly control developments outside towns, rural centres and villages in the Somerset and Exmoor National Park area while Policy 36 states that the provision of sites for gypsies should be made within a reasonable distance of settlements with local services and facilities. In addition, the emerging Sedgmoor District Local Plan contains policies relevant to the application because Policy STR3 aims to protect the countryside for its own sake and to strictly control development outside defined settlement boundaries, while Policy H34 allows for small-scale sites to meet the genuine needs of gypsies subject to certain criteria. I have already explained in paragraphs 8, 10 and 11 the way in which the Inspector considered the appropriate policies affecting gypsies and that he concluded that the application of matters, such as policy H34 had adverse consequences for the claimant. Thus, I do not believe that the Inspector can be properly criticised for ignoring planning policies relating to gypsies.
19. The second factor relied on by Mr. Masters was the particular position of the claimant’s elderly mother and his son Jason, who was eight years of age at the time of the appeal. It is settled law that “personal circumstances of an occupier, personal hardship are not to be ignored in the administration of planning control” (per Lord Scarman in Westminster City Council -v- Great Portland Estates [1985] 1AC 661, 670 E-G). In this case, as I have explained, two specific matters are relied on. First, the claimant’s mother who was aged 75 according to the claimant’s written statement suffered from diabetes, arthritis and had very high blood pressure with the result that it would not be in her health interests if she were to revert to “life on the roadside”. Second, the claimant’s younger son Jason, who was aged eight at the time of the appeal, had settled into a local school after a troubled start and his headteacher was certain that a change of school would hinder his progress and that he would benefit from a settled period of schooling. As I have explained, the Inspector considered those points in paragraphs 35 – 38 of the decision letter.
20. Third, as the European Court of Human Rights recently said of gypsies in Chapman -v- The United Kingdom (Application no. 27238/95 at paragraph 96)

“nonetheless although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of society does not confirm an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning work and in arriving at the decisions in particular cases .. To this extent there is thus a positive obligation imposed on the contracting states by virtue of Article 8 to facilitate the gypsy way of life”.

21. The case for the claimant is that the Inspector failed to carry out the appropriate balancing exercise so as to ensure that justice was done in this case. It is also contended that this failure shows a lack of proportionality. A particular point that is made is that if the Inspector had properly considered the personal circumstances of the claimant’s mother and son, he would have been obliged to impose the condition. The claimant’s solicitor, Mr. Cox put the point succinctly in his latest witness statement, when he contends that it was “irrational and perverse of the Inspector, having found that personal circumstances existed, to not then go on and consider/explain why time limited permission was not appropriate based on those personal circumstances”.
22. It is said by the claimant in this connection that although the Inspector referred to the conditions of the claimant’s mother, he later nullified it by the subsequent comments. Mr. Masters says that having set out details of the claimant’s mother’s health in the way that I have indicated in paragraph 13 above, he then nullified it by his subsequent comments. The Inspector said of Mrs. Ayres senior’s condition that he attached weight to it but “such weight has to be moderated by the fact that her needs to stay on the appeal site are likely to be shorter than those of other members of the Ayres family”. I am unable to accept the argument that the comments in that sentence show that he attached no weight or inadequate weight to her age and condition. What the Inspector was saying there was that he was accepting as an indisputable fact of life that a lady of 75 has a shorter life expectancy than her son, daughter-in-law and grandchildren and there is nothing objectionable or unreasonable about this. Indeed, the Inspector could have been justifiably criticised if he had not taken into account as he did the age and life expectancy of Mrs. Ayres senior.
23. By the same token, the Inspector sets out the reasons why Jason should remain in the same school and he then adds that “I attach some importance to this but again it needs to be tempered by the fact that Jason’s current educational needs would be over some considerable time before the long-term personal permission being sought effectively expired”. It is said again that this comment nullifies the fact that Jason has educational needs to remain on the appeal site. I do not share that view because obviously Jason’s education would have finished a long time before the expiry of the planning permission, which was due to last for the whole of his life. Again, the Inspector does not say that he does not accept the significance of the educational needs but merely he says, as is obvious, that it has to be “tempered” by an obvious fact of life. I believe that the points set out in this paragraph and the previous paragraph answer the contention that the Inspector ignored the second and third factors.
24. A fourth factor relied on by the claimant, which also appears in Chapman is that

“a further relevant consideration to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available [for the gypsy], the interference [with Article 8 rights] is more serious than where such accommodation is available” (Paragraph 103).

25. In fact, that point was specifically taken into account by the Inspector who said in paragraph 17 of his decision “on balance there appears to be a level of under provision [for gypsies], which weighs in favour of [granting permission]”. He later balanced this point against those factors in favour of refusing permission. So the claimant does not have any justifiable complaint that any of the four factors relied upon by him were not considered or were not considered properly by the Inspector.
26. The main criticism of the decision letter by the claimant is that the Inspector ought himself to have raised the question of a temporary permission in the light of the fact that he had come to the conclusion that the claimant’s mother had a limited life and the son of the claimant, Jason, had a limited period left at school.
27. In answer to these submissions, Mr. Mould for the Secretary of State explains that it is necessary to bear in mind the basis upon which the application and the subsequent appeal were made and pursued. The initial application and the basis of the appeal to the Secretary of State was for permission “to site two mobile homes as a family under Gypsy Sites Policy .. as a permanent base to continue nomadic lifestyle. This constituted an application for “change of use of the appeal to residential for caravans”. By the time the matter came before the Planning Inspector on appeal, the planning permission sought by the claimant was for a personal permission for the life of the claimant, his wife, their three sons and his mother but it was not sought to extend this permission to the next generation. In other words, the permission sought was to last just for the lives of these members of the family. Bearing in mind that Jason was only eight years of age at the time of the appeal, his likely life expectancy would have meant that the permission sought for the appeal site was likely to last for at least a further sixty years and possibly longer. The question of limiting the permission was discussed and considered by the parties on the hearing of the appeal before the Inspector.

The discussion at the hearing before the Inspector concerning permission for a limited period of years

28. Mr. Mould points out that in advance of the hearing in front of the Inspector, the Council had put forward a list of conditions which they contended should apply if the claimant’s appeal was to be allowed; one of those was that the permission to be granted should only last for five years and not be limited to anyone. At the hearing of the appeal, there was a discussion about these conditions between the representatives of the Council, of the claimant and the Inspector. Mr. Cox, the solicitor for the claimants, says in his first witness statement that the Council indicated that they felt a personal condition was not essential and they stated that a condition restricted to use by persons of nomadic habit of life would be appropriate.
29. The Inspector, Mr. Richard Curtis Merelie, says in his witness statement that at the hearing, he produced a copy of the agenda, which he had distributed to all those present at the appeal twenty minutes before the hearing started. He deliberately itemised temporary and personal conditions as item 9 on the agenda, which reads “Conditions – Council’s list (temporary and personal)” but he said that at the hearing, the Council argued that in the light of the claimant’s case for personal permission, the suggested five year period for temporary permission would not be appropriate and so, in effect, the Council withdrew this suggestion. The Inspector said that he recalled that the Council was concerned that they might be faced with repeated applications for temporary permissions in the future if they had previously already granted temporary permission. The Inspector stated that no alternative proposals were put forward on the appeal by anyone apart from the personal permission proposal of the claimant, which as I have explained, he considered and dismissed in the decision letter.
30. The Inspector explains that “at no time during the proceedings did the [claimant’s] representative specifically seek a time limited permission whether five years or any other period”. He points out that, on the contrary, the claimant was requesting a personal permission which was unlimited in time and that although the claimant had an opportunity to make a case for a five-year permission or some other meaningful period, because the claimant would have received the list of suggested conditions including the five year limited permission from the Council in advance of the hearing before him, no such case was suggested.
31. Mrs. Hilary Pulsford, the Appeals and Special Projects Officer of the Council, also made a witness statement in which she refers to a three-way discussion between herself, Mr. Cox and the Inspector at the appeal hearing regarding the merits of temporary permission and/or personal permission. She pointed out that Mr. Cox was proposing a personal permission rather than a temporary five-year permission and that she was asked for her views. Mrs. Pulsford says that “having recently been involved in another gypsy case where permanent permission had been granted I stated that my re-considered view that if a site met the criteria for a gypsy site there would be no specific justification for making it personal to [the claimant] or limiting it to a five year period”. She also added that her view had been influenced by paragraph 24 of circular 1/94, which states that unless there are particular reasons for granting a temporary period permission, then permanent permission should be granted.
32. In answer to the witness statements of the Inspector and Mrs. Pulsford, Mr. Cox then served a further witness statement, in which he said that he fully accepted the tenor of the discussions referred to in the statements of the Inspector and Mrs. Pulsford and “I entirely accept that the original proposal of five years did not progress simply because the authority were accepting that if permission were granted then it would be a personal condition to the claimant”. I should add that Mr. Cox had said in his first witness statement that “the claimant would have been content to accept any time limited condition which reflected the educational needs of the son Jason and the health needs of [the claimant’s mother]”. It is noteworthy that for some unexplained reason this point was not expressed to the Inspector at the hearing even though there was a clear opportunity for it to have been made when the Inspector’s agenda and especially item 9 of it was under consideration. Instead, as I have explained, the claimant sought a radically different form of permission, namely personal permission for the lives of the claimant and his family. In any event, I should add that I have no idea how long a period would have “reflected” the needs of Jason, who had eight or nine years of schooling ahead of him or the needs of the claimant’s mother.
33. Against that background, the Secretary of State submits that the Inspector was determining an application in front of him for a period of at least 50 or 60 years, namely the life expectancy of the claimant’s children and that no party was interested in granting a period for a shorter period even though they each, and in particular the claimant’s advisers, had a specific opportunity to do so when it was raised on the agenda. I agree that this is so and that it is striking that the only permission sought by the claimant was substantially greater than five years.
34. On that basis and against that background, Mr. Mould says that the Inspector had no reason to consider any other period. In answer to these points, the claimant refers to two authorities and a departmental circular, which it is contended show that the Inspector should of his own volition have considered a shorter period.

The authorities on the duty of an Inspector to consider a temporary permission for 5 years

35. The claimant relies on the comments in Brightwell -v- the Secretary of State for the Environment (1997) 73P & CR 418 of Lord Woolf MR, who said at page 426 in respect of the contention that the Inspector had failed to say anything about the possibility of granting permission with a limited time condition:-

“So far as that is concerned, I fully accept that this has been made clear in the case of Top Deck Holdings Limited -v- Secretary of State for the Environment that there is no obligation on an inspector, in the absence of any reference to an appropriate condition, to search for a condition which might be used to assist an applicant who is appealing against the decision of a planning authority. However, in this case, one of the matters, which clearly influenced the Inspector, was the viability of the whole operation. As I have indicated there were signs that the operation was improving in its viability and that [the claimant] was making a success of it. On the other hand, it was only viable on the basis that he devoted a very considerable amount of time personally into the operation and if, for example, he became ill the position could be transformed. A time condition was obviously a possibility and was relevant, as is recognised by the specific reference by the local planning authority. Again I would say the appellant is not being unreasonable in making a criticism of the Inspector for not making any mention of that possibility. That is a further matter that I would put into the balance. One does not know whether the Inspector has considered it but not mentioned it or whether it is a case of his failing to consider it. In either event, he could be criticised to a minor degree in that regard. Whilst it is not a consideration which I would have interfered with the decision of the Judge, I think it is a matter to be taken into account on the general approach”.

36. Mr. Mould for the Secretary of State says that the present case is completely different from the position in Brightwell because in the present case, Mr. Cox for the claimant was able during the discussion on item 9 of the agenda which dealt with “conditions” with the Inspector to have sought a five year term, but instead he made it clear that the claimant only wanted a term for his life and the lives of his mother, wife and children. I agree as the possibility of permission for a limited period had been mooted but had not been pursued so that any reasonable Inspector would have been entitled to assume that the claimant, who was represented by a solicitor, was not interested in such permission. Put in another way if the claimant did not ask for a permission limited to five years when he was legally represented and had a specific opportunity to do so, it is difficult to see why the Inspector should consider it.
37. I agree with that point and also with Mr. Mould’s further fallback point that Lord Woolf M.R. made it clear that he did not regard the failure to consider the time point as a matter “with which I would have interfered with the decision of the Judge”. Similar reasoning, I believe, applies here.
38. The claimant next relies on the case of Penfold -v- Secretary of State for the Environment (1996) P & CR 398 in which Judge Rich QC, sitting as a Deputy High Court Judge, referred to the principle in Top Deck to which I have referred and continued by saying at page 404:

“the Inspector should not have imposed upon him an obligation to cast about for conditions not suggested before him [but that] does not relieve him of the obligation of natural justice where a new point occurs to him which might be overcome by conditions to reopen the inquiry sufficiently so that, if the parties are so minded, they could suggest conditions to him which he would then be obliged to consider”.

39. In other words, the Judge was saying that where an Inspector wishes to impose conditions, he ought to enable the parties to address him about it. There is nothing in that case which indicates that an Inspector has a duty to consider and devise conditions and indeed such a proposition would be contrary to the oft-quoted statement of Mann LJ in Top Deck Holdings Ltd v. Secretary of State for the Environment [1991] JPL 961 (with whom Dillon and Beldam LJJ agreed) that “an Inspector should not have imposed upon him an obligation to cast about for the conditions not suggested before him”. In that case, the Court of Appeal had also agreed with a comment in an earlier case of Forbes J that:

“If a party to an appeal wanted the appeal to be considered on the basis that some condition could cure the planning objection put forward, then it was incumbent on [the applicant for the permission] to deal with that condition at the inquiry. Unless such condition has been canvassed the Secretary of State was not at fault in not imposing such a condition”(Marie Finlay v. Secretary of State for the Environment [1983] J.P.L.802).

40. Penfold is irrelevant to the issue of the extent and the nature of an Inspector’s obligation to look for conditions not suggested to him and so that case does not assist the claimant on the issue with which I am concerned. Mr. Masters also relies on departmental circulars, to which I must now turn.

The Departmental Circulars

41. Mr. Masters relies on the provisions in a departmental Circular, namely 11/95 The Use of Conditions in Planning Permissions (“the 1995 Circular”) and in particular paragraphs 108 - 113 which deal with temporary permissions. Some of the principles applying to temporary permissions are set out in paragraph 109 including one that “material considerations to which regard must be had in granting any application are not limited or made different by a decision to make the permission a temporary one”.
42. Paragraph 110 of the 1995 circular states that:

“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 granted. For example, permission might reasonably be granted on an application for the grant 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”.

Paragraph 111 of that Circular states that:

Again, where an application is made for permanent permission for a use which may be “potentially detrimental” to existing uses nearby, but there is insufficient evidence to enable the authority to be sure of its character or effect, it might be appropriate to grant a temporary permission in order to give the development a trial run, provided that such a permission would be reasonable having regard to the capital expenditure necessary to carry out the development. However, a temporary permission would not be justified merely because, for example, a building is to be made of wood rather than brick. Nor would a temporary permission be justified on the grounds that, although a particular use, such as a hostel or playgroup, would be acceptable in a certain location, the character of its management may change. In certain circumstances it may be possible to grant temporary permission for the provision of a caravan or other temporary accommodation where there is some evidence to support the grant of planning permission for an application for an agricultural or forestry dwelling, but it is inconclusive, perhaps because there is doubt about the sustainability of the proposed enterprise. This allows time for such prospects to be clarified.

The significance of policy statements from the Secretary of State contained in policy guidance is that they are potentially material considerations to which the actual weight to be given is a matter for the decision maker (Tesco Stores Limited -v- Secretary of State [1995] 1 WLR 759 at 764, 777 per Lords Keith and Hoffmann respectively and Merritt -v- Secretary of State [2000] 3 PLR 125 at 137 per Mr. Robin Purchas QC, sitting as a Deputy High Court Judge).

43. The legal position relevant to this case is that :-

(a) subject to considering and applying to the extent considered appropriate the policy guidance in the 1995 Circular, an inspector does not have an obligation in the absence of any reference to an appropriate condition to cast about for conditions not suggested before him (Top Deck);

(b) where a specific condition raised by the party would be a possibility, then the Inspector should consider it, but if he does not, that is not automatically a sufficient irregularity to justify interference with the decision made (Brightwell);

(c) if an Inspector wishes to raise a new point which might be overcome by a condition, natural justice would require him to reopen the inquiry so that the parties, if they are so minded, could suggest conditions to him that he would then be obliged to consider (Penfold).

44. Mr. Masters points out that the 1995 Circular was issued on 20 July 1995 while the decision letter in Brightwell was given on 2 May 1995 (see Brightwell judgment at page 424). Thus, it is said that the 1995 Circular has overtaken Brightwell and so the Inspector should have imposed a time-limited condition. Mr. Mould’s researches have revealed that identical provisions to those set out in the 1995 Circular and to which I have referred were contained in the predecessor to the 1995 Circular, which was Circular 1/85 of 7 January 1985. Apart from that, I am unable to accept this submission for four reasons.
45. First, a circular does not override established principles of law, such as those defined in Top Deck but it merely requires the Inspector to consider them. It is noteworthy that the wording of paragraph 110 of the 1995 Circular does not say that in the circumstances postulated there that permission must be granted, but merely that it “may be justified”. Thus the Circular does not require the Inspector to impose a condition but merely says that it can be justified and as I shall explain the special circumstances of this application meant that he did not have a duty to do so.
46. Second, the circumstances were that the Inspector cannot be criticised for not imposing or even considering a time limited permission after he had raised the issue at the hearing when he had included the possibility of a limited form of permission on his agenda but this had not been pursued or requested by the claimant or his solicitor even as an alternative or as a “fall-back position”. In any event, the Inspector’s omission to consider conditions subsequently could not be an error of law making his decision impugnable. In other words, the failure of the claimant or his solicitors to take up the Inspector’s suggestion of a limited permission means, at least, that the Inspector cannot now be criticised for not considering this possibility further.
47. The third reason why I do not believe that the decision of the Inspector not to invoke the rights referred to in paragraph 110 of the 1995 Circular is that for the reasons set out above, the claimant would not have been in the slightest bit interested in a time limited permission of the form now being suggested. After all, he was seeking something radically different even though at or before the hearing he could have raised the possibility of permission for a five-year period at the hearing. It is noteworthy that Jason, who was at the time of the appeal eight years of age would have had approximately seven years of schooling ahead of him and hopefully the claimant’s mother would have had the prospect of living for more than five more years. Furthermore, there is no contemporaneous evidence to show that at the time of the appeal, the claimant would have even been remotely interested in planning permission for the appeal site limited for five years. Indeed the failure of the claimant’s solicitor no doubt who knew his client’s instructions to raise this possibility in the light of the Inspector’s agenda confirms to me that the claimant would not have been so interested. No reason has been put forward for this omission, so even if the Inspector had suggested that he would consider granting planning permission for five years, I consider that the claimant would have rejected that possibility as it would not have answered his needs or met his wishes to use the appeal site which he had purchased as a home and base for himself, his wife and family. Thus there is no possibility that an offer of a time-limited condition would have interested the claimant and this shows the absence of merit in the claimant’s appeal.
48. The final reason why I do not believe that the decision of the Inspector can be impugned in failing to consider the time-limited condition is that there were very powerful overriding reasons why the Inspector would have been obliged to refuse the appeal. As I have explained, Paragraph 109 of the 1995 Circular specifies that the material considerations for considering a temporary permission are the same as those for a permanent permission. I believe that he would have rejected it for the same cogent reasons why he dismissed the appeal seeking permission for the lives of the claimant and his immediate family. I have already set out those reasons, which can be briefly summarised as firstly being that the proposed use by the claimant would constitute a breach of the settlement policy (paragraphs 18 – 20 of the decision letter), second that the proposal does not accord with the relevant development plan provisions (paragraph 21 of the decision letter), third that there were material highway safety objection to the proposals, fourth that the proposal therefore conflicts with the development plan provision with regard to safe access (paragraph 26 of the decision letter), fifth that the noise and disturbance caused by the use of the gravel drive and the parking area would be irritating (paragraph 27 of the decision letter ) and sixth that the site does not comply with three important conditions of Policy H34 for the reasons that I set out in paragraphs 10 and 11 above . So I do not think that there is any merit in the suggestion that the provisions on temporary permission set out in the 1995 circular would have had a decisive or any meaningful effect on this appeal.

Additional criticisms of the Inspector’s decision

49. Mr. Masters also criticises the decision of the Inspector because of other matters, which he does not, as I understand it, suggest are free-standing grounds for allowing the appeal but are points supportive of his main ground. The main complaints relate to the way in which the Inspector considered the statement that the Council would not “take immediate eviction action”(paragraph 45 of the decision letter) against the claimant in respect of his use of the appeal site. As I will explain when I consider the argument on proportionality in paragraphs 53 to 56 below, I do not consider that there is any ground for criticising the decision letter on this ground and, in any event, this could not even constitute an arguable supporting ground for impugning the Inspector’s decision to dismiss the claimant’s appeal.
50. Other complaints of Mr. Masters relate to the way in which the Inspector dealt with the absence of alternative accommodation for the claimant but, as I have explained, this was taken into account by the Inspector in paragraph 17 of the decision letter. Similarly Mr. Masters’ criticism of the way in which the Inspector dealt with the highways point and the education of Jason are all unjustified. In any event, they really amount to disagreements with the conclusions of fact at which the Inspector had arrived but as he was entitled on the evidence to reach those decisions, they do not assist the claimant on this appeal.
51. Another criticism of the decision letter is that it does nor deal adequately with all the relevant considerations but Lord Lloyd has explained that “what the Secretary of State must do is to state his reasons in sufficient detail to enable the readers to know what conclusion he has reached on the ‘principal important controversial issues’”(Bolton MBC v Secretary of State for the Environment (1995) 71 P. & C.R.309 at 314). In his decision letter, the Inspector clearly satisfied that test and I cannot accept the complaint of the claimant on this point. In fact whether considered individually or cumulatively none of these points assist the claimant.
52. I therefore reject the claimant’s submission that the decision of the Inspector and of the Secretary of State was perverse but I must turn to the contention that the decision of the Council and also of the Inspector was disproportionate.

Proportionality

53. The claimant contends that the decision of the Inspector to dismiss the appeal was not proportionate. As I have already explained, the approach of the Inspector was that he noted that there were no available alternative sites but that the Council had indicated that they would not “take immediate eviction action” (paragraph 45 of the decision letter). The Inspector then continued:

“In balancing the rights of the [claimant] against the protection of the countryside in the public interest and other development plan considerations, I do not consider the Council’s action or mine to be disproportionate. Accordingly I conclude that there has been no violation of human rights under Article 8” (paragraph 45).

54. The claimant criticises this and says that the Inspector was incorrectly influenced in reaching this decision by the Council’s statement about its further actions. According to Mr. Cox in his witness statement, the planning authority are not taking the same view which was expected of them by the Inspector if he is concerned that the Inspector had assumed incorrectly that there would be no immediate eviction and that the Ayres family would be allowed to remain on the appeal site until there was something available for them while it now seems that the Council are not taking the same view.
55. Mrs. Pulsford in her witness statement, says that the true position was that at the appeal hearing, she commented that “it would be unlikely the Council would take any immediate eviction action as it would attract bad publicity [and that] any action would be carefully considered.” She then stated that the Council had in fact honoured this and that eviction action had been suspended. Mrs. Pulsford explained that she distinguishes between “immediate eviction” and the claimant’s claims that the family should be allowed to remain for as long as personal circumstances pertain; she regards these matters as “quite distinct” and she says that at the meeting she only commented on the first part.
56. There is nothing in the decision letter which, requires or suggests any period for which eviction action would be postponed, but it merely states that the Council would not take immediate action to evict the claimant and his family and that has proved to be the case. In determining whether the response of the Secretary of State was proportionate, it is worthwhile recollecting the powerful reasons put forward by the Inspector for dismissing the appeal which are set out in paragraphs 7–16 above. These are reasons to which the Inspector was entitled to arrive and they constitute a firm basis for the Inspector’s decision, which cannot be impugned under Section 288 of the 1990 Act.
57. Set against that background, I do not regard the response of the Inspector as being disproportionate in any way. The decision that he arrived at and that of the Council was not disproportionate or perverse and is not to my mind open to any public law challenge. So the appeal must be dismissed.

Postscript

58. It is appropriate to record that during argument, I asked why if I were to dismiss this appeal, the claimant could not put in a fresh application for planning permission to use the appeal site for the purposes proposed by the claimant but only for a period of five years. Section 70(A) of the 1990 Act states the circumstances in which a second application for planning permission can be made and it provides that

70A. –(1) A local planning authority may decline to determine an application for planning permission for the development of any land if –

(a) within the period of two years ending with the date on which the application is received, the Secretary of State has refused a similar application referred to him under section 77 or has dismissed an appeal against the refusal of a similar application: and

(b) in the opinion of the authority there has been no significant change since the refusal or, as the case may be, dismissal mentioned in paragraph (a) in the development plan, so far as material to the application, or in any other material considerations.

(2) For the purposes of this section an application for planning permission for the development of any land shall only be taken to be similar to a later application if the development and the land to which the applications relate are in the opinion of the local planning authority the same or substantially the same.

I understood Mr. Mould for the Secretary of State to consider as a matter of impression that section 70(A) would not preclude a second application being made by the claimant for planning permission but on that occasion the permission would be limited in duration to a period of five years. I need not make a decision on this but I merely record this opportunity possibly still open for the claimant.

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(Post Judgment Discussion took place on 27^th February 2002)

MR JUSTICE SILBER: Thank you very much, Mr Mould, for sending me a copy of the circular. You drew my attention to paragraphs 11 to 15.PRIVATE 

MR MOULD: Yes, my Lord, only because those were the corresponding paragraphs to the ones that my learned friend referred to.

MR JUSTICE SILBER: What, the conditions?

MR MOULD: Yes, and, as your Lordship will recall, I had found the paragraph --

MR JUSTICE SILBER: I thought the paragraphs that we were looking for were the ones dealing with temporary permissions. I do not think we went through these. Is that right, Mr Masters?

MR MASTERS: Yes, essentially my Lord is right.

MR JUSTICE SILBER: In any event, so far as the six conditions which are set out there are concerned, the position is that this condition was not a necessary condition?

MR MOULD: My Lord, yes, that is right. The reason that I drew attention to those paragraphs -- your Lordship is quite right that the real issue is about whether the condition is one which would satisfy the guidance on temporary conditions, it is just that Mr Masters, I think, had suggested during the course of his argument in reply that the corresponding paragraph to paragraph 11 in the circular, as I have said --

MR JUSTICE SILBER: I thought his point about it was -- and I am sure Mr Masters will correct me if I am wrong -- it was really the conditions relating to temporary.

MR MOULD: Well, if that is right, then --

MR JUSTICE SILBER: Is that right, Mr Masters?

MR MASTERS: My Lord, it is. I think Mr Mould's point is that, during the argument, I did suggest at some point that some of the passages may be new.

MR JUSTICE SILBER: What you did say was that -- you drew my attention to the Brightwell decision, which was given before the 1995 circular came in.

MR MASTERS: I was attempting to gain something from the Brightwell wording --

MR JUSTICE SILBER: What I am tempted to do, after having received this, is just to make some changes to paragraph 44.

MR MASTERS: My Lord, I have no objection to that. My Lord, it seems to me that the bones of your decision was a very, very well worded decision.

MR JUSTICE SILBER: It is what?

MR MASTERS: May I just praise you on the wording of your decision, which is very comprehensive and easy to read.

MR JUSTICE SILBER: Yes.

MR MASTERS: In passing, it seems to me the main point was that this issue was never before the inspector and that is the main finding of fact, and I think these subsidiary points do not really at the end of the day take matters much further.

MR JUSTICE SILBER: Do you have any comments to make on the grammatical points, the typographical errors?

MR MASTERS: I went through it because I know that it is useful to say that and I could not find any.

MR JUSTICE SILBER: Mr Mould found a few and I am going to adopt those and I am also going to put in the points about these conditions in the final version that you well get.

So, for those reasons, I think it follows that, notwithstanding your clear and cogent submissions, I have to dismiss this appeal.

MR MOULD: My Lord, I understand that Mr Master's client is legally aided and what I would ask for in terms of an order for costs is, if your Lordship is minded to make it, an order that the claimant should pay the Secretary of State's costs, but that those costs should be subject to detailed assessment and should not be enforced without the court's permission.

MR JUSTICE SILBER: I do not think you can resist that football pools order.

MR MASTERS: I cannot, my Lord. It is normal --

MR JUSTICE SILBER: And I think you would also like to ask for whatever the present form of wording is for a publicly funded certificate.

MR MASTERS: My Lord, indeed. I am not absolutely certain what the present form of wording is, so I am going to leave it at that. It was normally a legal aid taxation, but it is legal aid assessment.

MR JUSTICE SILBER: Yes, well, I order a detailed assessment.

MR MASTERS: I am grateful for that. My Lord, the only thing I raised with Mr Mould was that I would normally have two weeks in which to seek leave to appeal. I ought to ask my Lord first and formally whether one would grant leave to appeal. My Lord, I am not seeking it with any anticipation. As I have said before, I think the judgment is very well worded. It just gives me time to write an advice to that effect to my solicitors. I wonder if my Lord would extend the time to four weeks. I do not see matters getting further.

MR JUSTICE SILBER: You are not putting in any reasons at this stage in favour of permission to appeal?

MR MASTERS: My Lord, no.

MR JUSTICE SILBER: Bearing in mind that I have to make amendments to the judgment, so you will not actually get a copy of the final version of it probably until Monday, I suspect, if I extended the time until, what, 26th March, is anything wrong with that?

MR MOULD: No, I do not object to that.

MR JUSTICE SILBER: Well, I extend the time until 26th March.

MR MASTERS: I am grateful, my Lord. It helps to have that extra time.

MR JUSTICE SILBER: I just thought I ought to say that the final version will come out fairly shortly. It does deal with what I think is an interesting point. It will be available for you at the beginning of next week.

MR MASTERS: My Lord, may I just say that I was not able to find a copy of that circular myself but I am glad Mr Mould again on that had more success than me.

MR JUSTICE SILBER: I got it just in time, which is the important point about it. Thank you very much indeed. Can I just thank you both for your help in what was really a very interesting case.