QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF COYLE||(CLAIMANT)|
|THE FIRST SECRETARY OF STATE||(FIRST DEFENDANT)|
|THE ROYAL BOROUGH OF KINGSTON UPON THAMES||(SECOND 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 MORSHEAD (instructed by Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT
MR BEARD (instructed by Legal Services of the Royal Borough of Kingston upon Thames) appeared on behalf of the SECOND DEFENDANT
Crown Copyright ©
"The council will retain the existing travellers' caravan site at Hook Rise. Any proposal for a new site should include provision for basic amenities and services and will be assessed in relation to other policies in the plan, especially those concerned with access, traffic generation, and environmental protection."
Then the explanatory observations in relation to that policy state:
"Given the highly developed nature of the borough, and the large proportion of open land designated as Metropolitan Open Land and Green Belt, opportunities for suitably located gypsy sites are unlikely to arise. Any new proposals should pay particular attention to minimising visual intrusion by the provision of adequate landscaping. Ideally sites should be suitable for mixed residential and business uses."
Then it goes on to refer to "unauthorised parkings of caravans" and that steps would be taken to restrain the re-use of sites which had been affected with this unlawful use.
"Except in very special circumstances approval will not be given for development (other than the change of use of an existing building) within the Green Belt, as defined on the proposals map, for purposes other than:-
1) agriculture and forestry;
2) outdoor sport;
4) appropriate residential infill development or a modest extension which does not change the scale of an existing property and where nor more than 25 % of the plot is developed in the form of buildings, garages and hardstandings;
5) other uses which are open in character and appropriate to a rural area."
In addition, it conflicted with the government policy set out in PPG2, which dealt with the Green Belt. It followed that the chances of success in an application such as this would in those circumstances, on the face of things, be somewhat remote.
-- to provide that the planning system recognises the need for accommodation consistent with gypsies' nomadic lifestyle;
-- to reflect the importance of the plan-led nature of the planning system in relation to gypsy site provision, in the light of ... ('the 1991 Act'); and
-- to withdraw the previous guidance indicating that it may be necessary to accept the establishment of gypsy sites in protected areas, including Green Belts."
It is to be noted that the third point, on the face of it, makes this sort of application for a site within the Green Belt somewhat more difficult. The Circular points out that:
"Gypsies make up a tiny proportion of the population of England and Wales, but their land-use requirements need to be met."
It also points out that the repeal of the statutory duty, placed upon local authorities to provide accommodation for gypsies, makes it all the more important that:
"Local planning authorities make adequate gypsy site provision in their development plans, through appropriate use of locational and/or criteria-based policies."
That is developed in paragraph 12 of the Circular, which reads as follows:
"Local plans and Part II of unitary development plans should wherever possible identify locations suitable for gypsy sites, whether local authority or private sites. Where this is not possible, they should set out clear, realistic criteria for suitable locations, as a basis for site provision policies. They should also identify existing sites which have planning permission, whether occupied or not, and should make a quantitative assessment of the amount of accommodation required. A tradition of sites occupied by gypsies and the demonstration of a local need will help authorities to make proposals for sites in suitable locations."
"As a rule it will not be appropriate to make provision for gypsy sites in areas of open land where development is severely restricted, for example, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest, and other protected areas. Gypsy sites are not regarded as being among those uses of land which are normally appropriate in Green Belts. Green Belt land should therefore not be allocated for gypsy sites in development plans. PPG2 gives guidance on Green Belt policy."
"Compliance with the guidance in Circular 1/94 is essential to fulfilling the Government's objective that Gypsies should seek to provide their own accommodation, applying for planning permission like everyone else."
"It is essential therefore, that adequate Gypsy site provision is made in development plans to facilitate this process. I would welcome your support to ensure that this is done. Planning Authorities may also wish to consider whether the absence of such provision may prejudice successful enforcement action against unauthorised encampments, or give rise to grounds for appeal against refusal of an application for a new site."
"The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development".
Then paragraph 1.5, which is headed "Purposes of including land in Green Belts" reads:
"There are five purposes in Green Belts:
-- to check the unrestricted sprawl of large built-up areas;
-- to prevent neighbouring towns from merging into one another;
-- to assist in safeguarding the countryside from encroachment;
-- to preserve the setting and special character of historic towns; and
-- to assist in urban regeneration by encouraging the recycling of derelict and other urban land."
"Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
Paragraph 3.4 deals with "New buildings" and provides that:
"The construction of new buildings inside a Green Belt is inappropriate unless it is for [one of five] following purposes:
-- agriculture and forestry ...
-- essential facilities for outdoor sport and outdoor recreation [which incidentally would, no doubt, explain why the permission was granted for the pavilion and so on]...
-- limited extension, alteration, or replacement of existing dwellings ...
-- limited infilling in existing villages ... and limited affordable housing for local community needs under development plan policies, according with PPG3 ... or
-- limited infilling or redevelopment of major existing developed sites ..."
"The statutory definition of development includes engineering and other operations, and the making of any material change in the use of land. The carrying out of such operations and the making of material changes in the use of land are inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt."
"PPG2, Green Belts, advises that the most important attribute of Green Belts is their openness. New development within a Green Belt is inappropriate unless it is for one of the specified purposes and inappropriate development is, by definition, harmful to the Green Belt."
"17)... the change in the appearance of the appeal site, from one of soft landscape features to a hard-surfaced area, surrounded initially by profile-sheeting, harms the openness of the area ... even if planting were possible, the development creates an urbanised environment in what was part of the undeveloped rural area of the Green Belt."
"Further development in this area would be perceived as extending the sprawl of the built-up area and would fail to safeguard the countryside from encroachment."
Thus it would harm two of the five purposes of including land in Green Belts set out in PPG2. She decided that it would be "unacceptably detrimental to the character of the area, contrary to [development policy in the UDP.]"