QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF MARLENE BUTLER||(CLAIMANT)|
|BATH AND NORTH EAST SOMERSET DISTRICT COUNCIL|
|BRISTOL CITY COUNCIL|
|SOUTH GLOUCESTERSHIRE DISTRICT COUNCIL|
|NORTH SOMERSET DISTRICT COUNCIL||(DEFENDANTS)|
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)
MS NATHALIE LIEVEN appeared on behalf of the DEFENDANTS
Crown Copyright ©
THE DEPUTY JUDGE:
The Factual Background
"Policy 33 of the Deposit Draft was a combined policy for mobile homes and Gypsy sites. It was one of three policies (Policies 31 to 33) concerned with housing numbers and with qualitative aspects of housing including affordability and housing mix. It sought to address the needs of Gypsy and traveller sites and other mobile homes, as special kinds of housing need requiring special consideration ..."
"The location of sites for mobile homes will generally be subject to the same planning policies as other residential developments; requiring access to local services and facilities, especially for sites in long-term use, and reflecting local environmental considerations. A site for mobile homes is not appropriate in the Green Belt and may be unacceptable in some locations where permanent housing would be permitted."
In a distinct subparagraph, Policy 33 continued as follows:
"Sites to accommodate mobile homes for gypsies and travellers, which may involve special requirements, will be addressed in local plans."
"16 objections to this Policy 33 were received ... Objectors included the Avon Travellers Support Group, the Romany Guild, the National Romani Rights Association, Bristol Socialist Environment And Resources Association ... who all called for a more positive and prescriptive policy for the provision of Gypsy sites in local plans ..."
"In relation to gypsy policy, we do have a criteria policy in our local plan and in North Somerset we have, if the right word is deliver, we have delivered gypsy sites, we have granted planning permission for gypsy sites. There may be an argument about whether the need is fully met but it's a criteria based approach, applications have been judged on the basis of need and planning permission has been granted so I can't agree with the statements that have been made across the table in North Somerset's case."
"Turning to policy 33 and particularly on the policy aspect [for] the provision for gypsy sites, South Gloucestershire does have two managed authorised sites at Winterbourne and Patchway providing accommodation for 32 families. There are also in addition a number of smaller privately owned sites throughout South Gloucestershire. The Council would readily conceive [I think that should read 'concede'] that on assessment of the Department of Transport, Environment to the regions [I think, again, that should read 'and the Regions'] by annual gypsy counts and its own weekly counts of unauthorised [then there appears a blank in the record, but I think that must be 'sites'] that there is a very strong case to say that need has not been met within South Gloucestershire."
"3.61. The second part of Policy 33 states that sites to accommodate mobile homes for gypsies and travellers, which may involve special requirements, will be addressed in Local Plans. The first part concerns mobile homes in general and it makes clear that these would not be appropriate in the Green Belt. The objectors to this policy contrast it with policy H.12 of the current Avon County Structure Plan (1994) which states that provision will be made by the County or District Councils, or by private provision, for about 100 additional caravan pitches on permanent and transit sites to be located in both the urban and rural areas of the County, and in addition that emergency stopping places to meet the needs of travellers or gypsies will be provided. It has also been brought to our attention that no sites for travellers or gypsies have been provided in Bristol after 20 years of seeking, and that there has been a 100% refusal rate of gypsy site applications by South Gloucestershire Council and its predecessor authority, despite the very great pressure in the Plan area for accommodation for gypsies and travellers.
"3.62. The Panel appreciate that since the 1994 Structure Plan the statutory duty of local authorities to provide sites for gypsies has been repealed. The advice in Circular 1/94 anticipated this change and it encourages gypsies and travellers to provide accommodation for themselves. In general, the existing and emerging Local Plans for the Plan area are compatible with this advice so far as they set out criterion-based policies against which planning applications are judged. However, it is abundantly clear that this approach is failing to meet the housing needs of this group within the community.
"3.63. We are strongly of the view that the Plan must seek to do more to guide and assist the Unitary Councils in fulfilling their obligations to all sections of the community. Therefore the Plan should set out a broad strategy which will ensure that local planning authorities assist gypsies to find suitable sites in accordance with their needs. This issue should not be treated as an adjunct to a general policy about mobile homes but should have separate policy status. We do not consider that it would be appropriate to set a numerical target for site provision at structure plan level, but we would expect that in monitoring the Plan, the JSPTU will work closely with the Unitary Councils to quantify the need for sites within the area and to review the planning and other measures which may be required to achieve an appropriate level of provision ..." (my emphasis)
"Policy 33 should be modified by the deletion of the reference to sites for gypsies and travellers. A separate policy should be inserted in the Plan which requires that suitable locations for gypsy and traveller sites will be identified in Local Plans, that the provision of sites will be encouraged in accordance with local assessments of need, and that sites should be located close to services and facilities including schools, readily accessible from main roads, and wherever possible should be suitable for mixed residential and business uses in accordance with gypsies and travellers' needs." (my emphasis)
"10. The Panel did not, however, recommend a form of words for the modified policy (as it had done, for example, in Recommendation R18 for Policy 31).
"11. The Joint Committee considered the Panel's report initially at its meeting on 27th July 1999. In relation to Recommendation R21, the Committee resolved to 'reserve judgment for further consideration by officers' rather than agree in principle the Panel's recommendation immediately.
"12. At its meeting on 14th October 1999, the Joint Committee agreed decisions and reasons in relation to the Panel's report as the basis for Proposed Modifications that were published on 5th November ... For Recommendation R21, their decision was to agree a new Policy 37 (separate from the new Policy 36 on mobile homes):
'Local plans will set out policies to secure an appropriate level of site provision for gypsies and travellers within their area, including the provision of temporary stopping places to reduce unauthorised encampments.
Permanent sites should be located within a reasonable distance of local services and facilities, outside existing settlements or on the edge of built-up areas if more appropriate, avoiding the encroachment of open countryside and minimising noise, visual impact and disturbance.
Sites should not normally be located within the Green Belt, on areas of open land subject to special policies on conservation and/or restriction of development, or on the best and most versatile agricultural land.
Mixed use sites will be considered where appropriate incorporating provision for residential and small scale light business use undertaken by gypsies and travellers.
The monitoring of the provision of facilities by Local Authorities will be coordinated in order to ensure that provision reflects the level and changing pattern of need.'
"13. The Committee's reasons for proposing this modification were:
'The proposed addition of a new policy on gypsy and traveller sites follows the approach recommended by the Panel (R21). The new policy is based on guidance to LPAs contained in Circular 1/94 and a DETR/Home Office document "Managing Unauthorised Camping - a good Practice Guide" (October 1998).'"
"All these objections were considered by the Joint Committee on 3rd February 2000 ... when a change in Policy 37 was agreed ... [I do not feel the need to quote from the changed wording of Policy 37, save to note that there was a change in the second subparagraph of it which begins 'permanent sites']."
"On 3rd February 2000, the Joint Committee resolved to adopt the plan without further modification. Some revisions, including that of Policy 37 were considered as clarifications, either in response to objections or for other reasons, rather than substantial modifications requiring further deposit. Adoption was delayed by a holding direction preventing adoption, received from the Secretary of State on 17th March ... followed by a substantive direction requiring changes to the housing numbers in Policy 33, issued on 27th July ..."
"Further Modifications to the JRSP were published on 14 December 2001. The reason for this lapse of time was that responding to the Secretary of State's direction required undertaking co-ordinated urban housing capacity studies and agreement by the Joint Committee and its constituent authorities to amended housing figures (Policy 33). The Secretary of State indicated in February 2002 that he was 'minded to lift' the direction in response to the Further Modifications."
"The Joint Committee resolved to recommend adoption of the plan by its four constituent councils, without further modification, on 7th March 2002. The four councils agreed, between May and July 2002, to adopt the plan. The Secretary of State's direction was withdrawn on 14th August and the plan was formally adopted on 23rd September, following the publication of notices of intention to adopt on behalf of the four councils."
"(1) If any person aggrieved by a unitary development plan or a local plan ... or by any alteration, or replacement of any such plan or structure plan, desires to question the validity of the plan or, as the case may be, the alteration, or replacement on the ground-
(a) that it is not within the powers conferred by Part II, or
(b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan, or, as the case may be, its alteration, or replacement,
he may make an application to the High Court under this section.
"(2) On any application under this section the High Court ...
(b) if satisfied that the plan, or, as the case may be, the alteration, or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration, or replacement either generally or in so far as it affects any property of the applicant." (my emphasis)
"4. Where the report of the person holding the examination in public contains recommendations that the proposals should be modified in a manner specified in the report and the local planning authority intend not to accept one or more of those recommendations:
(a) the authority shall make a list of recommendations that they do not intend to accept available for inspection from the date on which, and at the places at which, the report is made available for inspection;
(b) the notice given in Form 3, or in Form 4, as the case may be, shall record the authority's intention not to accept those recommendations and invite objections and representations to be made in respect of that intention within six weeks of the date on which the notice is first published in a local newspaper ... [I do not need to cite the remaining parts of the paragraph which concern further consequential procedural requirements]."(my emphasis)
Material Provisions of National Policy
"This Circular revises guidance on the planning aspects of sites for caravans which provide accommodation for gypsies. It applies equally to local authorities' own sites and to applications for planning permission from gypsies themselves or from others wishing to develop land for use as a gypsy caravan site. The Circular comes into effect immediately ..."
"Gypsies make up a tiny proportion of the population of England and Wales, but their land-use requirements need to be met ..."
"After the proposed repeal of this duty [a reference to the repeal of the duty under the 1968 Act to make adequate provision for gypsies which was imposed on local authorities], local planning authorities should continue to indicate the regard they have had to meeting gypsies' accommodation needs. Repeal of the statutory duty will make 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. Structure plans and Part I unitary development plans should continue to set out broad strategic policies, and provide a general framework for site provision. Local plans and Part II of unitary development plans should continue to provide detailed policies." (my emphasis)
"Local plans and Part II 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." (my emphasis)
A similar statement to paragraph 12 of the circular is to be found in paragraph 4.14 of PPG12, which is concerned with development plans.
The First Issue
"R21 of the Panel's recommendations did not say how locations for Gypsy and traveller sites should be identified in the Local Plans. The Joint Committee took the view that the best way to identify locations for sites was through the mechanism of Policy 37, which allowed the use of locational criteria or site identification, depending on local circumstances."
(1) R21 was, essentially, a statement of desirable planning policy, not a statement written by lawyers for lawyers. In this context I am reminded of the well-known statement made in another context that the "austerity of tabulated legalism" is to be avoided: see S A De Smith, The New Commonwealth and its Constitutions (1964) page 194 and Minister of Home Affairs v Fisher  AC 319 at 328H (Lord Wilberforce). (I am grateful to Paul Rishworth for providing the reference to the book by Professor De Smith). It seems to me that Mr Jones' submissions, which advocated careful dissection and parsing of R21 into clauses and subclauses, invited me to fall into the temptation to treat a recommendation such as this with the austerity of tabulated legalism.
(2) Although the phrase "identified in Local Plans" in the first part of R21 by itself might appear to refer to site specific allocations only, the remainder of R21 clearly envisages some criteria-based policies in local plans as well.
(3) R21 should be understood in its context, as both sides accept, including the factual history. What the Panel was responding to was principally to recommend alteration to the wording of the draft Policy 33, not least because the reference to gypsy sites was very much an add-on at the back of a policy which was otherwise to do with mobile homes generally. Its focus was not on the suggested distinction between locational and criteria-based policies.
(4) Policy 37, as finally formulated, does not require criteria-based policies only. It simply enables the defendants to have a choice as between site specific allocations and criteria-based policies, or both.
(5) Such an approach is consistent with national policy, in particular paragraphs 9 and 12 of Circular 1/94, which I have already cited. Although national policy is not binding on local planning authorities, it is a material consideration, and if the Panel had intended to recommend departure from it, they could, and would, have said so in terms.
(6) It is in the expert view of the Joint Committee, as reflected in Mr Daniels' witness statement before this court, undesirable that an excessively rigid approach should be adopted, no matter what their different circumstances, particularly because the Structure Plan is to cover four different local planning authority areas. The evidence is that each area has a different level of demand for gypsy sites, and there has been a different experience in meeting the needs of gypsies through attempts to find specific sites. There has been different experience in relation to whether it has been possible to grant applications for planning permission (see the evidence to the Panel by the third and fourth defendants which I have already cited by way of example above).
"There are significant differences between the four council areas that make up the joint structure plan, in terms of the needs of and provision for gypsies ... and the physical opportunities and constraints of each area for sites ... In these widely varying circumstances, the Joint Committee considered that a policy based on a single approach to be used in all four council areas would be unlikely to succeed in delivering appropriate provision."
"South Gloucestershire Council in its Local Plan (Revised Deposit, July 2002 ...) states:
'The Council recognises that on the basis of this information, the need for accommodation of Gypsies for settled occupation within South Gloucestershire has not been met and no transit or emergency provision has been made either. However, despite extensive searching, the Council has, to date, been unable to identify further sites to meet this need. In lieu of any specific proposals therefore, Policy H11 sets out the criteria against which applications for Gypsy caravan sites will be judged.'" (my emphasis)
Still in paragraph 31, Mr Daniels continues:
"The South Gloucestershire Local Plan Policy (H11) is criteria based ..."
The Second Issue
(1) Section 287(2)(b) of the 1990 Act is clear in its terms and confers power on the court to quash a plan, either wholly or in part.
(2) Policy 37 can be severed from the rest of the plan not only as a matter of language, but also as a matter of substance. It is not only textual severance, but the test of substantial severance which is important: see R v Director of Public Prosecutions, ex parte Hutchinson  2 AC 783.
(3) The only reason, as I understood the argument, why Mr Jones submitted that the whole plan was "infected" by any legal defect in Policy 37 was a suggested knock-on effect on Green Belt policies. But I was not shown any such policies, nor why they could not stand, nor indeed why the rest of the plan could not stand generally as a sensible and coherent document if Policy 37 were to be severed. As Ms Lieven pointed out, Mr Jones' real complaint is directed to what Green Belt policies, including possible alteration of Green Belt boundaries, may find their way into the four local plans which are in the process of preparation, rather than Green Belt policies in the Structure Plan itself.
(4) It is common ground that the use of the word "may" in section 287(2)(b) of the 1990 Act confers a discretion on the court whether or not to quash a plan at all. In my view, it would not have been just or appropriate to quash the entire plan simply because a procedural defect had occurred in the adoption of Policy 37. This is not to belittle the importance of procedural requirements. Indeed, the court is astute to ensure that procedural fairness is complied with, not least because it will not usually interfere with the outcome of fair procedures unless the resulting decision is irrational. However, a sense of proportion has to be kept when weighing in the balance on the one hand a failure to comply with regulation 15(4) in relation to one specific policy, and on the other hand all the public time and resources which have gone into the adoption of the Structure Plan over a period of six years, from 1996 to 2002. It was common ground before me that the effect of an order quashing the plan under section 287 would be to take things back, not to the Panel report stage, but to what has been called the "inception" of the plan: see South Northamptonshire District Council v Charles Church Developments Ltd  PLCR 46, a decision of Hidden J.
The Third Issue