QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF WILLIAM LEE||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR T MOULD AND MS G WARD (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
The claimant and his family are Romany gypsies. He applies, pursuant to Section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), to quash a decision by the First Secretary of State to dismiss his appeal against Dartford Borough Council's refusal of his application for planning permission. The claimant's application was for planning permission to use land at Sauleskalns, Ship Lane, Sutton-at-Hone, Dartford in Kent as a small family gypsy caravan site for himself and his wife and family, his brother John and his wife and children, and his other brother Joseph and his wife and children. He had purchased the site in July 2002 and moved into it with his family shortly afterwards without first obtaining planning permission.
First ground of challenge - policy H22
Dealing with the first ground of challenge, policy H22 of the emerging Local Plan Review is a criteria-based policy for considering proposals for gypsy caravan sites. It states that proposals for gypsy caravan sites will only be permitted where seven stated criteria are met. It also states that such proposals will not be permitted in the Green Belt. The Local Plan Review has reached the deposit stage and a public inquiry into objections to it is to take place in September 2004. The evidence was that there had been no objection to the current version of policy H22. The point was made to the inspector by the claimant that the Council had only consulted one of the gypsy organisations referred to in Annex A of Circular 1/94, namely the National Gypsy Council, but, as the inspector pointed out, the Circular does not suggest that all the relevant organisations have to be consulted.
Second ground of challenge - personal need
I turn, then, to the second ground of challenge, namely that the Secretary of State, through his inspector, failed to distinguish between the need of the claimant and his family for a gypsy site, and the question of the personal circumstance and hardship that would be caused to the family if planning permission were refused. That submission was based on the case of Hedges v The Secretary of State for the Environment, 73 P&CR 534, where Mr Gerald Moriarty QC, sitting as a Deputy High Court Judge, held that the need for the provision of sites for gypsies generally, or their personal needs for accommodation, should be considered independently from the question of personal circumstances or hardship to the family.
"I acknowledge that the appellant needs a settled site from which he can continue to travel as appropriate."
She then continued in that paragraph to deal with the educational needs of the children and, in the last sentence, concluded by saying that the personal circumstances do not provide the very special circumstances necessary to overcome the harm from inappropriate development.
Third ground of challenge -- temporary planning permission
I turn then, finally, to the third ground of challenge which relates to the issue of a temporary planning permission. Paragraph 42 of the inspector's report records, as part of the claimant's case, a request for temporary planning permission to allow time for an alternative site to be sought if permanent planning permission is refused. It is clear from the written final submissions made by Mr Willers at the inquiry that that request was made to the inspector.
"I have considered whether a temporary condition might be possible. Circular 11/95 advises that a temporary permission will normally only be appropriate either where the applicant proposes temporary development or when a trial run is needed in order to assess the effect of the development on the area. Temporary permission during the education of the children could last for many years, and the harmful effect of the development on the Green Belt has already been assessed. I do not find the very special circumstances to justify even a temporary consent for such an extended period of time ."
The number "55" at the end of that paragraph is a reference back to paragraph 55 of the report to which I have just referred. In other words, there is no reference back to paragraph 42 which recorded the claimant's request for temporary planning permission to allow time for an alternative site to be sought.
"The Secretary of State agrees with the inspector for the reasons given at paragraph 73 that although refusal of planning permission would be an interference with the appellant's home and family life, it would not be a disproportionate burden balanced against the harm to the Green Belt. Interference with home and private and family life must be balanced against the public interest in pursuing the legitimate aims of Article 8 of the European Convention on Human Rights, which include the protection of the environment. The fundamental aim of Green Belt policy of preventing urban sprawl by keeping land permanently open is a matter in the public interest. Given the extent of the harm to the Green Belt, the Secretary of State takes the view that the public interest can only be safeguarded by the refusal of planning permission. He does not consider, therefore, that dismissal of the appeal would result in a violation of the appellant's rights under Article 8 of the Convention." (My emphasis).