QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DONCASTER METROPOLITAN BOROUGH COUNCIL||(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)
MISS K SELWAY appeared on behalf of the DEFENDANT
MR M WILLERS appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
Wednesday, 19th March 2003
"12. No recent figures were produced for gypsy site provision or occupation in the area. There are a number of gypsy sites within the Borough, and I was told at the hearing that there are some, though limited, vacancies on those sites at present. I therefore have no firm indication that there is an overall need for sites to be provided, although I understand that there continue to be a number of unauthorised sites in the locality. The appellant does not wish to move his family to a nearby established site, and having visited the one mentioned at the hearing I have sympathy with that view. The particular site is an unattractive environment adjacent to industrial premises, and contrasts markedly with the quality of surroundings at the appellant's property.
13. The list of gypsy sites brought to my attention does not give any indication of availability at each location, and no such information has been made available. I cannot, therefore, assess whether any site has vacancies within a reasonable distance of the schools attended by the appellant's children. However, given the location of the sites as described by their addresses, it seems unlikely that they would offer a convenient location in this respect.
14. I have been provided with information prepared in May 2002 in respect of the likely psychological outcome to the appellant and his family of having to move from the appeal site. This information was not available at the previous appeal. I accept that moving to a bricks and mortar house, which has been tried unsuccessfully in the past, would cause problems resulting from a perceived lowering of the quality of life. In any case, the appellant indicates that neither a traditional house nor an official gypsy site (which has also been tried unsuccessfully) would be acceptable. The alternative, of following a mobile existence with his family, would be likely to adversely affect the education of his children. Though of some age, research on this topic has shown that children in travelling families are subject to particular difficulties.
15. Consequently my findings on this issue are that existing gypsy sites are unlikely to offer either the quality of life desired by the appellant, or the locational advantages which would offer easy access to facilities and services. In any case I am not satisfied that there is any vacancy in a suitable location. The appeal site currently offers these benefits. I accept that a return to a conventional house, or a return to a travelling lifestyle as a group, would not be in the interests of the appellant and his family. As a result I am satisfied that there is a need for a site to provide accommodation for them.
16. The Council indicated at the hearing that it would be prepared to enter into a dialogue in order to try to identify an alternative private site which would be acceptable to it and has no objection to the establishment of private gypsy sites in principle. It was suggested at the hearing that such dialogue would be possible if a temporary planning permission were to be granted for the appeal proposal. Neither the Council nor the appellant's agent objected to this in principle, though some reservations were expressed.
17. However, it seems to me that such a course of action would enable a breathing space to be established in which the continuing issues surrounding the provision of a suitable site could be examined. This would also enable the appellant's children to continue with their education in the meantime, and would avoid the potential psychological damage of an enforced move".
"18. I have found that the development is harmful to the character and appearance of the area and in conflict with the development plan. However, there are other material considerations which I must take into account. I am mindful that an enforced move is likely to have harmful psychological effects on both the appellant and his wife. It would also be likely to be harmful to the education of his children. I attach significant weight to these matters. In my judgment they are sufficient to outweigh the conflict with the development plan insofar as they make the case at present for a temporary planning permission in order to allow time for a more suitable site to be sought. The advice of Circular 11/95 -- The Use of Conditions in Planning Permissions -- is not generally supportive of temporary planning permissions based on amenity reasons, though this is a case where the time limiting of the permission would have the future aim of removing a harmful development whilst recognising the interim needs of the appellant and his family. As such I consider it justified in this case".
"Conditions other than a temporary time limit were discussed. I do not consider that permission with a condition personal to the appellant and his family would be appropriate since I have found the site to be currently unsuitable for the development in the long term because of the harm caused to the character of the area. I agree that a condition restricting the use to a gypsy family would be reasonable since it is the circumstances of gypsy lifestyle and culture which justify the temporary permission in this case. I also consider a condition restricting the number of caravans on site to be reasonable in order to prevent further harm to the area. So far as the temporary condition is concerned I consider that a three year period should be sufficient to identify an alternative and acceptable site".
"1) The use hereby permitted shall be discontinued and the land restored to its former condition on or before a date three years from the date of this permission in accordance with a scheme of work submitted to and approved by the local planning authority.
2) This permission does not authorise use of the land as a caravan site by any other persons other than gypsies, as designated in section 24(8) of the Caravan Sites and Control of Development Act 1960 as amended.
3) No more than one mobile home and one touring caravan shall be stationed on the land at any time".
"I considered whether the permission should be made personal to Mr Buck and his family (see paragraph 20 of the decision letter) but came to the conclusion that this was not necessary by reason of the fact that the permission was to be strictly limited in time and restricted to occupation by one gypsy family only".
"The first question to consider is whether the second defendants did have a sufficiently clear and separate interest. I am in no doubt that they did. This was not simply an exercise, as so many planning appeals are, about the value of land where a developer, for example, wishes to defend a planning permission that he has obtained because it is a valuable asset. The second defendants in the present case are at risk, or were at risk if the Council's application succeeded, of losing their homes; homes that they have lived in for a number of years since 1996. In my judgment, that gave them a particular and direct interest which made it right that they should be represented here in addition to the Secretary of State".
"So I am satisfied, therefore, that they do have a clear and distinct interest which warranted representation. That they did, if you like, give added value in the case of this particular reasons challenge, given the nature and the subject matter of the reasoning that was challenged. For those reasons, I am satisfied, in principle, that there should be a second award of costs. It would seem to me to be fundamentally unjust if someone whose home was at risk was not able to attend court in order to defend his home".
" . . . in a peculiarly good position to put that background material before the court and, indeed, did so very helpfully".
" . . . fundamentally unjust if someone whose home was at risk was not able to attend court in order to defend his home".
"Further to our previous correspondence and telephone calls to your office [this is to the Treasury Solicitor] we would be grateful it you could confirm as a matter of urgency the position of the Secretary of State in relation to the above appeal", and we have not received anything until last week.