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 WC2
		Monday, 24th January 2005

1. MR JUSTICE NEWMAN: This is a challenge under section 288 of the Town and Country Planning Act 1990 to a decision by a planning inspector on the claimant's appeal against the refusal of the Wigan Metropolitan Borough Council ("the planning authority") to grant him planning permission to use his land as a private gypsy caravan site with associated structures.
2. The site is within the green belt, and therefore the inspector had to consider the harm to the green belt against the existence of any very special circumstances sufficient to outweigh the presumption against inappropriate development in the green belt. That balancing exercise, in short terms, required the inspector to reach a conclusion as a matter of fact on the impact that the proposed development would have upon the green belt. Having reached that conclusion, he had to put into the balance the factors relied upon by the claimant, which can be briefly described as the Article 8 rights which the claimant, as a gypsy, raised in connection with his need for a home for himself and his family.
3. As to the planning conclusion in connection with the green belt, there is no challenge. It is sufficient, therefore, to simply set out the inspector's conclusion:

"25. Taken overall, I conclude that the appeal scheme would result in a significant loss of openness of the Green Belt and considerable harm would be caused to its visual amenity. Moreover, the location and nature of the development in the Douglas Valley would also run counter to the objectives of the DVLP to maintain and, where possible, enhance the landscape character of the valley and the canal and river corridors. This degree of harm has to be added to the harm by reason of inappropriateness of the development in the Green Belt."

4. The challenge that Mr Watkinson has brought on behalf of the claimant is a challenge to the inspector's conclusion that there were not very special circumstances sufficient to outweigh the presumption against inappropriate development.
5. In essence, the inspector had to consider all the circumstances which the claimant had advanced. There is no challenge to his conclusions insofar as he assessed the needs of the family and the children and, in particular, one child. The challenge starts with, and one might say ends with, a contention that the inspector reached a conclusion of fact, which was not open to him on the evidence, in connection with the availability of alternative accommodation.
6. It is unnecessary for me to do anything other than note that the cases on this area of the law, whether they be cases arising under enforcement notices and injunctions, or whether they be cases in connection with applications for planning permission, have established that, whereas non-gypsies seeking to develop green belt land will have to overcome objections based upon the availability of accommodation from conventional sources, namely conventional bricks and mortar accommodation, the circumstance peculiar to gypsies is that they are entitled, as a consideration in their cases, to have attention directed to the availability of accommodation which accords with their traditional way of life: a consideration which normally comes down to the focus of attention being on the availability of sites or pitches on sites, authorised by planning law.
7. The claimant was represented on the appeal and, no doubt in accordance with advice, gave evidence about the availability of authorised pitches in the area. As it happens -- it is no more than a mere observation, but it is a fact -- the part of the decision of the inspector which is now challenged comprises the conclusion to which the inspector came on the evidence which the appellant placed before the inspector with a view to persuading the inspector to come to the opposite conclusion to that which he came.
8. The appellant's evidence was put before him because it was no doubt felt that it could persuade the inspector to conclude that there was an inevitability of hardship to the appellant and his family because of the absence of pitches on authorised sites. But, the inspector was able to conclude on that material, as I shall recite, that the evidence supported the dismissal of the appeal. It is therefore not surprising that such attention has been drawn to it.
9. The inspector noted, by way of a preliminary comment, the existence of Government policy on gypsy site provision contained in Circular 1/94 Gypsy Sites and Planning, which stresses the importance that local planning authorities should attach to the provision of adequate gypsy site provision in their development plans. He went on to record, with what can be seen as a note of regret, that the local planning authority had made no quantitative assessment of the need underlying policy, and that it had, contrary to the advice provided in Circular 1/94, left the position as one in which it would be difficult to assess the future quantitative need of accommodation for gypsies in the borough of Wigan.
10. That said, he then turned to the evidence which he had received:

"29. Existing lawful site provision comprises a public site at Bickershaw Lane with 16 pitches capable of accommodating 24 caravans, and a private site at Little Lane with 15 pitches capable of accommodating up to 30 caravans. The appellants' evidence is that recent counts have indicated that the Bickershaw Lane site has accommodated more caravans than its site license allows and that the Little Lane private site has accommodated more than 30 caravans on three of the last five counts. The appellants also make reference to the number of possession orders obtained by the Council which have been running at an average of over 20 per year during recent times. On the basis of this evidence, the appellants argue that there is a significant shortage of authorised site provision in the Borough. Furthermore, the appellant refers to the fact that the Little Lane site has only been permitted on the basis of temporary planning permissions and is now pending closure because of a road proposal affecting the land and argues that this is likely to compound the shortage."

11. No complaint is made about the accuracy of that paragraph and, for the purposes of completeness, so that I foreshadow a reference I shall need to make to the detail of the argument, all I need record is that counsel inform me that there was evidence from the counts, for example in the years January 2001 to 2003, when at the Little Lane site there were 28 caravans, where the inspector recorded there was provision for 30, and in 2002 there were 29, where there was provision for 30.
12. It is apparent from the decision letter that the local planning authority responded by way of a little evidence and argument and submission to the conclusions that should be drawn from this material. In particular, the local planning authority informed the inspector as to the likely outcome in connection with the Little Lane site pending any closure and, in the event of closure, what should happen. By way of submission, it acknowledged a shortfall in supply from time to time, but submitted that it was not of such a magnitude as to be excessive.
13. The conclusion, after some reference to another planning decision in the Wigan area, to which it is not necessary for me to refer, the inspector stated as follows:

"34. Looking ahead, to my mind, the situation with regard to the Little Lane site can be seen in two ways. Firstly, in view of the road proposals, there is doubt that gypsy accommodation will be continued to be provided beyond the short to medium term. On the other hand, the Council's witness stated that no families would be forced to leave before an alternative site or sites are found. Little information was available as to the process or time period contemplated for site selection but it does seem to me that the opportunity to provide additional pitches that might accommodate the appellant family cannot be ruled out. Given the evidence, my view is that any shortfall in pitches in the Borough that might occur from time to time is small but, to the extent that it does exist, weighs in favour of the proposal."

14. Then, as I indicated, in a part of the decision letter in connection with the personal circumstances of the family, which are not under challenge, the inspector reverted, in a passage which is heavily relied upon by the appellant, as follows:

"Given that it is not unreasonable to rule out opportunities for re-locating the family to Little Lane, or its replacement site or sites, there is no certainty that dismissal of the appeal would lead directly to the family resorting to roadside encampments."

15. For completeness, before I turn to the submissions, I should record his conclusion on the balancing exercise:

"39. The appeal proposal constitutes inappropriate development in the Green Belt and would cause a noticeable loss of openness. The degree of harm to the Green Belt would be significant. Taken together, the accommodation needs of gypsies in the Wigan area and the personal circumstances of the appellants related to the special educational needs of JD, the health care needs of the family and the welfare of their horses do not outweigh this harm. I therefore consider that these positive factors do not provide the very special circumstances necessary to set aside the presumption against inappropriate development and the harm to the openness of the Green Belt."

16. As I have already foreshadowed, the only part of that balancing exercise with which I am concerned is that part which refers to the accommodation needs of gypsies in the Wigan area.
17. In his skeleton argument and in his oral submissions, Mr Watkinson submitted that in the passages which I have quoted, the inspector made a finding that there was a possible opportunity for the claimant and his family to be accommodated at the Little Lane site. As a result, he submitted, the inspector concluded that it was possible that the family would not have to resort to roadside encampments and the consequences which would flow from that. In his submissions, from time to time, he referred to "the fact", as he submitted it had been held by the inspector, that there was something which amounted to some sort of possibility, if not a probability, but clearly a positive finding as to availability. At first, it seemed to be suggested that the inspector may well have come close to making an actual finding of availability of accommodation at the Little Lane site.
18. In my judgment, the interpretation which his skeleton argument and his submissions have placed upon the findings of the inspector are not justified. They amount, in my judgment, to a misinterpretation of what he concluded on the basis of the evidence he had heard. I am satisfied, as Miss Lieven submitted, in particular in her skeleton argument, that what the inspector had concluded was that the opportunity for additional pitches, or for a pitch to become available, which might accommodate the appellant family in the future could not be ruled out. He was, in my judgment, taking the evidence which he had heard, that there had been opportunities in the past, with the additional slight elaboration, which counsel by their illumination provided in connection with 2001 and 2002, that there had been vacancies in the past. The inspector took that evidential basis as sufficient to justify a conclusion that if there had been vacancies in the past, he could not rule out the possibility that there would be opportunities in the future.
19. He was also paying regard, in my judgment in a way in which he cannot be criticised, to the submission which had been advanced to him that the true view of the historical position was that there had been a shortfall in supply from time to time, but that it was not excessive. He was also paying regard, in my judgment in a manner in which he was entitled, to the evidence as to what could happen in connection with the Little Lane site, faced as it was with uncertainty because of closure for road purposes.
20. It follows from what I have stated that I am satisfied that the essential starting point for the mounting of this appeal, namely a contention that the inspector came to a conclusion that there was a possibility or a probability of a site becoming available in the future for the family was one which was not open to him on the evidence, is misplaced. Thus, I must move to what can be regarded as an alternative way in which the matter has been argued.
21. Mr Watkinson submits that in carrying out the balancing exercise which our planning law requires, namely in this context the balancing of harm to the green belt against the circumstances of an individual applicant, this being an Article 8 exercise, and indeed where Article 8 is engaged, the court when reviewing the balancing exercise should not approach the matter in the way in which the defendants suggest, namely that the weight is entirely a matter for the decision-maker and not the court, subject to the weight attached being irrational, but that there is a heightened sense, or heightened review, which the court should undertake, which requires attention to be directed to the relative weight accorded to the interests and considerations which have engaged the Human Rights Convention. Support for this heightened degree of scrutiny is said to be found in the speech of Lord Steyn in the case of Daly v The Home Secretary 2001 2 AC at 547 F to G.
22. In response, Miss Lieven submits that the approach which Sullivan J took in the case of Buckland & ors [2002] JPL 570 is one which should commend itself to this court. In paragraph 47, Sullivan J recorded this:

"47. It was submitted that on an appeal under sections 288 or 289 this court should satisfy itself that the right balance had been struck by the inspector. Reference was made to R v Secretary of State for the Home Department, ex parte Daly [2001] 2 WLR 1622 and to the discussion of proportionality by Lord Steyn in paragraph 27. It is helpful to read on, because in paragraph 28, Lord Steyn was at pains to point out that although 'the proportionality approach' may sometimes yield different results, 'this does not mean that there has been a shift to merits review'. He endorsed the observation of Laws LJ in Mahmood [2001] 1 WLR 840, at page 847 paragraph 18, 'that the intensity of review in a public law case will depend on the subject matter in hand', adding 'that is so even in cases involving Convention rights. In law context is everything'."

23. Sullivan J observed, as is correct, that Daly was concerned with prisoners' rights. He found the case of R (Alconbury) v Secretary of State for the Environment, Transport & Regions [2001] 2 WLR 1389 as of rather more help. Ultimately, he concluded that the approach under planning law, the balance which I have emphasised more than once which was required in this case, is one which in his judgment complied with Article 8 because it incorporated the very balancing exercise which was required by Article 8(2). Thus he concluded, as I understand it in paragraph 55 of his judgment, that the concept of proportionality did not advance the exercise beyond a requirement for the general law to safeguard aspects common to the whole of society, such as the environment, as well as paying due respect to the interests safeguarded to the individual by Article 8; in short, one was back to the well-known case of Chapman in the Strasbourg Court.
24. In my judgment the excursion into Daly did not advance the essential question which arises on the alternative part of Mr Watkinson's argument, namely, whether the court can be satisfied that the inspector properly carried out the balancing exercise, having put into the respective scales all the material considerations. Having done that, and weighed them in the way in which he was required to do, whether or not his conclusion is one which, when tested by this court on review, can stand a degree of scrutiny which is appropriate to the exercise being one in which rights under Article 8 are engaged.
25. In my judgment the difficulties which arise in connection with gypsy cases do not, when the balancing exercise is carried out, enable one to conclude that as a matter of principle the gypsy status and its attendant difficulties for housing and families are determinative or dispositive of any case. Each case requires the balancing exercise to be carried out by reference to all the circumstances. In this case, it was not simply the availability in the future by way of an opportunity, which could not be ruled out, which was in the scales so far as the inspector was concerned, also in the balance were the inspector's conclusions in connection with the personal considerations in connection with the family.
26. In my judgment it is not open to this court, unless circumstances are very different from the ones shown to me, for the court to select one aspect of the Article 8 rights as they affect a gypsy family, namely the availability of alternative accommodation, and, having selected that, conclude that more weight should have been attached to it by the inspector. The balancing exercise is a balance of all the considerations.
27. Tested by irrationality, I can see no case for concluding that the inspector was bound to exclude from the balancing exercise the opportunity which he had concluded the evidence disclosed for this family having the possibility of not experiencing roadside encampments. The extent or weight to be attached to that opportunity as he had found it on the evidence, and in which in my judgment was provided by the evidence, was a matter for him, subject to the scrutiny which this court must give it. I am unable to conclude that, in giving the matter the weight he did, or in giving all the matters the weight he did, it can be said in this case that he came to a conclusion which was unlawful and not justified by the material which was before him.
28. For all those reasons, this appeal must be dismissed.
29. MS LIEVEN: My Lord, your Lordship has already dismissed the appeal. Can I just indicate that, as I understand it, the claimant is legally aided and the Secretary of State is not seeking an order for costs.
30. MR JUSTICE NEWMAN: You would like a legal aid assessment?
31. MR WATKINSON: Yes, and I am obliged to my learned friend for that and I would ask for a detailed assessment.
32. MR JUSTICE NEWMAN: You may have it.
33. MR WATKINSON: I am much obliged.
34. MR JUSTICE NEWMAN: Thank you both very much indeed.