England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		11 March 2004

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of an Inspector appointed by the first defendant dismissing the claimant's appeal against the second defendant's decision to refuse a retrospective application for planning permission for a change of use of The Meadows, Parkfield, Pucklechurch, Bristol ("the site") to a gipsy caravan site and access road. The appeal was dealt with by way of an informal hearing which was held on 25 September 2003. The Inspector visited the site on the same day and his decision letter is dated 13 October 2003.
2. The site is in the Bristol/Bath Green Belt. Although foul drainage had been raised as an objection, that had been resolved by the time of the hearing. It was acknowledged that the proposal was an inappropriate development in the Green Belt. The Inspector therefore identified the one main issue in the appeal:

"Whether there are very special circumstances sufficient to overcome the presumption against the proposal, as an inappropriate development in the Green Belt, together with any other harm."

3. When describing the development plan context, the Inspector referred to Policy 37 of the Bath and North East Somerset, Bristol, North Somerset and South Gloucestershire Joint Replacement Structure Plan. That policy had been challenged in the High Court. The challenge had been dismissed, but an appeal to the Court of Appeal was pending. These matters were mentioned by the claimant's agent, Mr Stainer in his written representations. In paragraph 3 of the decision letter the Inspector said:

"Policy 37 of the [Structure Plan] is under challenge in the Courts at the present time, but unless and until any resulting changes are given statutory status all SP policies carry the full weight of an adopted plan policy.

In paragraph 5 he said:

"Policy 37 of the SP states that local plans will set out policies to secure appropriate provision of sites for gypsies, and that these sites should not normally be located within the Green Belt."

4. Having described the site and surroundings, and noted the parties' agreement that the claimant and her husband were gypsies and that the family had previously lived in both the Pucklechurch both and Kingswood areas, the Inspector first considered the potential harm that would be caused by a grant of planning permission. In paragraph 13 he said:

"Drawing together my findings on potential harm, there is no significant detriment to highway safety or to the living conditions of local residents remote from the site, but this does not outweigh the harm to the living conditions of the occupiers of Longacre, and this harm adds to the harm identified in paragraph 10 above. [The development has an adverse effect on the surrounding areas, character and appearance to the extent that is harmful and this harm is additional to that resulting from a conflict of policy]. Each case must be considered on its merits, but if the development were to be allowed it could be seen as a precedent for similar development, which would exacerbate the identified harm. In this context there is other grazing land in the same field and in adjacent fields, some in the ownership of the Appellants and some in other ownership, which might be seen by some as being very similar to the site. In conclusion the development conflicts with the aims of SP Policy 16, LP Policy RP34, LP Policy RP1 and parts of LP Policy RP10."

5. There is no challenge to the Inspector's assessment of potential harm. In paragraph 14 the Inspector turned to consider the extent of any very special circumstances. Under this heading he considered four matters that had been relied upon by the claimant as constituting very special circumstances: the need for gipsy sites in the area: the Williams family's need for a site, the children's educational needs and the family's health needs. It is not suggested that there was any other factor that should have been considered by the Inspector under the heading of very special circumstances.
6. On behalf of the claimant, Miss Easty submits that the Inspector erred in the manner with which he dealt with the children's educational needs and the family's health needs. She submits that the Inspector failed to consider the impact of an itinerant lifestyle on the children's education and the family's health, and that he wrongly equated the disruption that the family would face with the difficulties that are experienced by families who have to move from one bricks and mortar home to another as a result, for example, of a job change.
7. It is necessary to consider that submission against the background of the Inspector's other conclusions. When considering the availability of and the need for sites in the area, the Inspector accepted that there was an unmet need for settled gipsy accommodation. He also accepted that there were no locational or criteria based policies for council sites in the adopted plans as required by Circular 1/94. In paragraph 15 he said:

"The Council is involved in monitoring and researching the shortfall but there are no locational or criteria-based policies for Council sites in the adopted plans, a necessity required by Circular 1/94. I anticipate that the situation will change, but I find it impossible to predict when the availability of sites might improve. No evidence is available of the potential of private sites, although the appellant suggests that there will be pressure for sites in the Green Belt because the Green Belt boundaries are drawn tightly around settlements."

Drawing the threads together in paragraph 16, he concluded that:

"Each case must be decided on its merits. The failure of a policy to identify sites or practical policies for site provision is not in itself a reason for allowing residential accommodation in the Green Belt, but the absence of available sites is of important weight in this case."

8. It was against that background of unmet need in the area that the Inspector considered the family's need for a site, the children's educational needs and the family's health needs. In relation to the first of these three factors, he concluded:

"There is a distinct possibility that the only alternative to the development would be for them to take up other unauthorised or roadside accommodation. This would not swell the number of unauthorised units in the area as their presence at Parkfield is not authorised, but I consider it to be a matter of significant weight."

9. The Inspector dealt with the last two factors in paragraphs 18 and 19 respectively:

"18. There are four children of ages ranging between 9 and 13 years in the Williams' family. There education, in as settled an environment as possible, is important, as it is in all families with children. They attend the same schools in the Kingswood are as they did when in previous accommodation and they are responding well to their teaching. Uprooting the children to another location may require a change of schools, but that would depend on the distance the family moved. Education authorities are committed to providing equal learning opportunities throughout their regions. A change would cause a temporary hiatus in education and the challenge of a new school environment, syllabus and fellow pupils, but the children's school reports suggest that they are excellent pupils and in my view that should be to their advantage if changes were to be necessary. The movement of children from one school to another is at times unavoidable in the wider community if and when parents change jobs. I do not consider that education needs are a very special circumstance in this case.

19. The Williams family all have long term medical disorders and they have been cared for by the Mangotsfield surgery for thirteen years. Two children are receiving treatment at specialist units in the locality, and Mr Williams receives specialist care at Bristol Royal Infirmary. The links with these places of medical support have been maintained throughout the family's changes of accommodation in the area. Movement to an unauthorised in the region may allow continued use of these facilities, but a transfer further afield could result in disruption leading to an adverse effect on health which could be significant in its cumulative effect on the whole family. However, as with education, such changes are sometimes necessary with families in the wider community. It is my view that Health authorities throughout the country have to provide similar facilities throughout their areas and in this respect the detriment to health which might be brought on by a change of support would have the chance of being temporary. The health of the Williams family is a special circumstance to which I have given careful consideration, but I do not consider it a very special circumstance of great weight."

10. In his conclusions in paragraphs 20 and 21 the Inspector said:

"20. I have given full consideration to the situation in which the Williams's find themselves. With the lack of availability of Council sites into the foreseeable future they face a distinct possibility of having to live on a roadside site if they are not allowed to remain at Parkfield, a situation which could be exacerbated by poor health considerations. Continued occupation of the site would be of great benefit to them. However I do not consider, on balance, that those benefits to one family would amount to very special circumstances sufficient to outweigh the cumulative harm to the Green Belt, character and appearance of the area, and the amenities of the locality, all as identified above.

21. The dismissal of the appeal would result in the loss of the Appellants' present home, and they submit that this would violate the European Commission of Human Rights, in particular under Article 8. This interference to their rights must be balanced against the interests of the general population. For the reasons given above I have found that the development is seriously harmful to Green Belt, character and appearance and local amenities, and I am satisfied that this legitimate aim can only be safeguarded by the refusal of permission. This would not place a disproportionate burden on the Appellants and I therefore find no violation of their human rights."

The Inspector therefore dismissed the appeal.

11. Miss Easty acknowledged that the Inspector had carried out the balancing exercises that are required by both Green Belt policy and Article 8 of the Convention. However, she submitted that the exercises were flawed because the Inspector, having concluded that the claimant and her family would have to live on the roadside or some other unauthorised site, failed to consider what impact such an itinerant lifestyle would have on the children's access to education and the family's access to health care. This submission relies on the two sentences in paragraphs 18 and 19:

"The movement of children from one school to another is at times unavoidable in the wider community if and when parents change jobs."

and:

"However, as with education, such changes are sometimes necessary with families in the wider community.

12. It is submitted that in those two sentences the Inspector was equating the plight of the claimant and her family with the position of families in bricks and mortar accommodation in the wider community who have to move home; for example when parents change jobs. it is submitted that, as a result of that false analogy, the Inspector effectively concluded that the family would not suffer any, or any significant, disruption.
13. In my judgment, this criticism of the decision letter is wholly unrealistic. It plucks those two sentences of the decision letter entirely out of context and fails to have regard to the way in which the claimant's case was put to the Inspector. Because the Inspector noted that there was an unmet need for gipsy sites in the area, he recognised that there was "a distinct possibility" that the family would have to take up other unauthorised or roadside accommodation. Since the Inspector said that this was "a matter of significant weight", it is unrealistic to suggest that he had somehow lost sight of it when considering the educational and health implications of the family's move from the site. It is plain that he did not do so since he returned to this issue in his conclusions in paragraph 20:

"With the lack of availability of Council sites into the foreseeable future they face a distinct possibility of having to live on a roadside site if they are not allowed to remain at Parkfield, a situation which could be exacerbated by poor health considerations."

14. In the two sentences relied upon by Miss Easty, the Inspector was not equating an itinerant lifestyle with moves from one bricks and mortar home to another. He was merely making the simple point that moves, which inevitably involve a degree of disruption to schooling and healthcare, are sometimes necessary within the wider community.
15. I accept Mr Palmer's submission that he was entitled to have regard both to that consideration, and to the fact that education authorities are committed to providing equal learning opportunities throughout their regions and that health opportunities throughout the country have to provide similar facilities within their areas, in deciding what weight he should give to the disruption that would inevitably be suffered by the claimant's family if they had to return to unauthorised or roadside accommodation.
16. It is important to see the way in which the family's contentions in relation to education and health were put to the Inspector. In relation to education, the point was made that the children were doing very well at school. A letter from the Avon Consortium Traveller Education Service supporting the claimant's appeal said:

"The Government is requiring LEAs to improve educational access, inclusion and attainment for Traveller children, particularly at secondary level. If the family is not given permanent permission to remain on their site and have to move, these successful placements may break down or be difficult to maintain. This, in turn, will also make it much harder for both the Local Education Authority and the parents to carry out their legal duty."

17. In relation to the family's health needs, Mr Stainer's statement described the family's problems and said:

"As a result of the treatment encountered Mrs Williams' health deteriorated and she has since suffered from depression. Very strong letters of support in favour of allowing the family to continue living on site for health reasons from the family Doctor and the Travellers Health Project have been received. It would seem obvious to say that if the appeal is not upheld then the various health problems and treatments required in those letters would most probably not be properly addressed and invariably would lead to missed doctor and hospital appointments if the family are forced to live on the roadside."

18. A letter from the South Gloucestershire NHS Primary Care Trust said, in part:

"I would be very concerned about the Williams family's health and welfare if they were forced to move from their land. Their access to healthcare would be disrupted and their health put at risk. For these reasons I support their application for planning permission."

19. Thus, it was not being said that as a result of the family having to adopt an itinerant lifestyle there would be a complete absence of educational and health facilities. It was being contended that it would be much more difficult to make provision for the children's educational needs and the family's health problems. The Inspector was very much alive to these points. In paragraph 18 he acknowledged that, "Uprooting the children to another location may require a change of schools, but that would depend on the distance the family moved". Having noted that the children were excellent pupils, the Inspector said, "That should be to their advantage if changes were to be necessary". The suggestion that the Inspector believed that if the family had to take up other unauthorised or roadside accommodation they would be faced with only one move, is simply not tenable in the light of the Inspector's express recognition that changes of school might be necessary.
20. Similarly, when dealing with the family's health needs the Inspector did not suggest that there would be no disruption; rather the contrary. He acknowledged the possibility of disruption with potentially significant effects:

"Movement to an unauthorised site in the region may allow continued use of these [medical] facilities. But a transfer further afield could result in disruption leading to an adverse effect on health which could be significant in its cumulative effect. on the whole family."

He returned to that matter in paragraph 20, saying that the family's problems, "could be exacerbated by poor health considerations". There can be no doubt that the Inspector did, as he said, give "full consideration to the situation in which the Williams find themselves", against the background that he had concluded that there was an absence of alternative sites.

21. In summary, the Inspector accepted a number of the arguments that had been advanced on behalf of the claimant. He concluded that there was a distinct possibility that the family would have to live on a roadside site and that this could be exacerbated by health considerations. He acknowledged all the benefits to the family of remaining at the site, but concluded, nevertheless, that they did not amount to very special circumstances and that the loss of those benefits would not be a disproportionate burden upon the family under Article 8. The Inspector was entitled to strike the balance as set out in the decision letter.
22. There is no submission that his conclusion was Wednesbury unreasonable, once the specific criticism of the passages in paragraphs 18 and 19 of the decision letter is set to one cise.
23. I turn to the second ground of challenge, Policy S37. A few days after the Inspector's decision letter of 13 October 2003, Policy 37 was quashed by the Court of Appeal on 30 October 2003 in Butler v Arthur North East Somerset District Council & Ors [2003] EWCA Civ 1614. Miss Easty submits that the Inspector therefore erred in saying that Policy 37 should be given "the full weight of an adopted plan policy". Alternatively, she submits that the Inspector should have adjourned the inquiry pending the Court of Appeal's decision in Butler. She said, on instruction, that an application for an adjournment had been made, but it is only fair to say that that assertion was not made in the claim form and no evidence has been produced in support of the proposition that the Inspector was asked to adjourn. Upon the assumption that an adjournment was requested the Inspector could not have been criticised for refusing to adjourn, given the fact that, although he referred to Policy 37 in the decision letter, it did not in the event play any part in his conclusion that the claimant's appeal should not be allowed.
24. The Inspector accurately summarised Policy 37 in paragraph 5 of the decision letter. The Court of Appeal quashed the policy because the defendant council had not followed the necessary procedure for departing from the recommendations of the Panel which conducted the examination in public of the structure plan. In brief, the Panel had recommended the inclusion of a policy in the structure plan:

"Which requires that suitable locations for gipsy and traveller sites will be identified in local plans."

Such a policy would have accorded with the advice in Circular 1/ 94, which urges local planning authorities to identify locations suitable for gipsy sites in their local plans wherever possible. Where a locational policy is not possible, criteria based policies should be included in local plans. Policy 37 requires local plans to include criteria based policies for the provision of gipsy sites. Carnwath LJ, with whom Waller and Peter Gibson LJJ agreed, said in paragraphs 28 and 30 of his judgment:

"28. The point is a short one, and at first sight the answer seems to me reasonably clear. National policy draws a clear distinction between the identification of actual locations in a local plan and the setting of policy criteria. The preference is for the former. The EIP panel must have had that distinction in mind. They took the view that the existing 'criterion-based policies' of the local authorities had failed to meet the needs of the Gypsy community, and that more was needed by way of guidance. Their recommendation that local plans should 'identify suitable location' must be read in that context. They wanted something more specific than mere policy criteria.

....

30. By contrast Policy 37 does not require local plans to identify locations. It requires them to 'set out policies', and indicates some of the criteria which should guide the search. The form of the new wording must have been intentional. Whether or not the authorities thought they were departing from the recommendation, that in my view is the clear effect of what they did. The authorities were entitled to make such a change, but only after complying with the regulation."

25. Miss Easty's submission might well have had considerable force if, for example, the Inspector had said in his conclusions that, whilst there was a shortfall in the availability of sites for settled gipsy accommodation in the area, that shortfall would be addressed in the foreseeable future through a criteria based policy in the local plan pursuant to Policy 37 in the structure plan and if, in the light of such a conclusion, the Inspector had given relatively little weight to the present lack of alternative sites.
26. In the context of such reasoning, the inadequacy of Policy 37 in the structure plan and/or the distinction between a criteria based policy and a locational policy, might well have been relevant. However, that was not the Inspector's approach in this decision letter. Having accepted that there was an unmet need for settled gipsy accommodation in the area, far from being content that it would be resolved through the local plan process, the Inspector said in terms:

".... there are no locational or criteria-based policies for Council sites in the adopted plans, a necessity required by Circular 1/94. I anticipate that the situation will change but I find it impossible to predict when the availability of sites might improve."

As a consequence, he attributed "important weight" to the absence of available sites. It is plain that the Inspector did not consider that the shortfall in sites would be resolved through the local plan process within the foreseeable future because in paragraph 20 he said:

"With the lack of availability of Council sites into the foreseeable future they [the Williams] face a distinct possibility of having to live on a roadside site if they are not allowed to remain at Parkfield."

Thus, in this particular decision letter, there is no question of the Inspector having relied on Policy 37 in the structure plan as providing any sort of justification for refusing planning permission. It will be recalled that it was common ground that the development was inappropriate development in the Green Belt. It was not necessary to rely on Policy 37 for that conclusion since a similar policy is to be found in Circular 1/94 in any event.

27. When the Inspector summarised his conclusions as to potential harm in paragraph 13, he identified in the final sentence of that paragraph those development plan policies with which the proposal was in conflict. It will be noted that they did not include Policy 37 in the structure plan. For these reasons, although the Inspector was right to mention Policy 37, the fact that it was subsequently quashed by the Court of Appeal does not provide any ground for quashing this decision letter where the Inspector concluded that the proper course was to refuse planning permission even though he had concluded that there would be a lack of alternative sites "into the foreseeable future".
28. For these reasons these application must be refused.
29. MR PALMER: I have no further application.
30. MS EASTY: I am legally aided so I need Legal Services Commission taxation. I would like to check that you have a certificate on the file.
31. MR JUSTICE SULLIVAN: No. Would you like seven days to put one on the file?
32. MS EASTY: Seven days my Lord. We have one here.
33. MR JUSTICE SULLIVAN: On the basis we get one within seven days, you may have Community Legal Services taxation.