England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2006

Judge Gilbart QC:

1. In this judgment I shall deal with both challenges made by the two sets of Claimants under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") However where the grounds of challenge, circumstances or arguments are different I shall deal with the challenges discretely. I shall deal with the matters as follows

(a) Site

(b) Nature of application to the Court

(c) Procedural matters

(d) Factual background

(i) Planning history

(ii) The relevant planning applications

(e) The policy background

(f) The cases for the parties at inquiry

(g) The Decision Letter under challenge, and related passages in the Inspector's Report

(h) Legal framework

(i) Grounds of Challenge

(j) Discussion and Conclusions

A The Site

2. Both challenges relate to areas of land at Smithy Fen, which lies north east of Cottenham, a large village some 5 miles north east of Cambridge. A roughly rectangular area of land within Smithy Fen of about 7.5 hectares running south from Setchel Drove has seen a substantial amount of development by the stationing of caravans. It falls into the following parts

(a) Northern and northern part of western boundary; an L shaped area containing 22 plots with planning consent

(b) South west portion: a roughly square area containing 15 plots with planning consent.

(c) Southern boundary between square area and eastern boundary: 6 plots

(d) In a band running east west across the centre of the site between the square area and the eastern boundary: 6 plots;

(e) There are then five other areas lying within the square area, none of which contain authorised plots

(i) Behind the L shaped area to the northern part of the site: Victoria View, which contains 12 plots, and is the subject matter of these proceedings

(ii) Running east-west across the central part of the site is Pine View, which contains 12 plots. Applications for permission to station caravans there eventually failed on appeal to the Defendant Secretary of State.

(iii) An appeal was also made relating to an area of land east of Victoria View

(iv) Another strip running across the centre of the site (Orchard View) is the subject of a pending appeal

(v) A rectangular area to the south east (Orchard Drove/Kennedy Croft) contains more unauthorised plots.

3. Subdivision has occurred. The result is that there are now authorised plots for at least 63 caravans. Caravans are also stationed on the unauthorised areas described above. If consents were granted for caravans to be stationed on the plots where permission has been or is being sought, it would involve a very substantial increase in the amount of land authorised for the stationing of caravans. The First Secretary of State eventually concluded that the capacity of the whole 7.5 hectare area was at least 130 caravan plots.
4. The Appellants in the first appeal (Mr James Sheridan and others) live at 2, 6, 8 and 11 Victoria View. Mr and Mrs McCarthy live at 12 Victoria View.

B Nature of Applications to The Court

5. Both applications are made under section 288 of the TCPA 1990 and seek to challenge the dismissal by the First Defendant's predecessor the First Secretary of State of the various appeals against the refusals of the Local Planning Authority (South Cambridgeshire District Council) to grant the planning applications described below.

C Procedural Matters

6. At the outset of the appeal, Mr Richards applied that his solicitor come off the roll for John Sheridan and Patrick Quilligan. That application was granted without objection. Mr Richards subsequently confirmed that the public funding certificates of these two Claimants did not extend to representation at trial but were limited to all steps up to but excluding trial. All the other Claimants in the first appeal have the benefit of public funding certificates covering full representation.
7. I heard the applications under section 288 of the TCPA 1990 in relation to the claim by the other Sheridans, O'Briens and Nelly Quilligan. I then heard the application relating to Mr and Mrs McCarthy. Neither the first Claimants nor the second Claimants objected to that course, nor to my delivering one judgement in which the court deals with the two cases.

D Factual background

(i) planning history

(ii) the relevant planning applications

8. The Sheridan group of claimants applied for personal planning permissions in relation to Plots 1- 11 Victoria View " for use as a gypsy caravan site." By a "personal permission" I mean a permission to which a condition is attached that it enures only for the benefit of the applicant in question.
9. Mr and Mrs McCarthy also applied for a personal permission to site 2 caravans at Number 12 Victoria View. That application was granted as a personal permission on appeal in February 2004, but that was quashed in this Court by Forbes J on 15^th December 2004 (S Cambridgeshire DC v First Secretary of State, McCarthy, McCarthy and O'Rourke [2004] EWHC 2933 (Admin)).
10. The reopened McCarthy appeal and the Sheridan appeals came before another Inspector at an inquiry which took 6 days from 12^th July 2005. The Secretary of State recovered the appeal for determination by himself.
11. The Inspector recommended that the appeals be dismissed. The Secretary of State issued a decision letter on 7^th December 2005 in which he dismissed both appeals, and other related appeals, which do not require description in this judgment.
12. The various Appellants contended that they were " gypsies" according to the definition from the Caravan Sites Act 1968 and repeated in Circular 1/94 " Gypsy Sites and Planning." The Inspector rejected that argument in the case of the Claimants to this court save for John Sheridan and Danny O'Rourke, but the Secretary of State chose to treat all of them as gypsies having regard to the definition in the emerging draft policy on Planning for Gypsy and Traveller Sites, and to his own response to the ODPM Select Committee's Report on Gypsy and Traveller Sites. For the purposes of these proceedings, it was accepted by all parties that the Claimants had such status.

E The Policy Background

13. There are policies dealing with countryside, settlement and gypsy and travellers' sites in the South Cambridgeshire Local Plan , which formed the local plan tier of the statutory Development Plan. While Circular 1/94 of the Secretary of State required local planning authorities to include policies on gypsy and traveller sites which had been informed by a quantitative assessment, no such assessment had been carried out. The relevant Local Plan policy HG 23 contains a set of criteria, each of which must be met if a site for caravans for gypsies is to be permitted in accordance with the policy. Provided that he has regard to that and other Development Plan policies, it is of course open to the decision maker to permit a proposal which does not comply with the policy if he considers that material considerations indicate otherwise: see section 70 of the Town and Country Planning Act 1990 and section 38(6) Planning and Compulsory Purchase Act 2004.
14. National policy is set out principally in Planning Policy Statement 7 on Sustainable Development in Rural Areas, Circular 1/94 on Gypsy Sites and Planning, and in Circular 18/94 on Gypsy Sites Policy and Unauthorised Camping. The Secretary of State had also issued a consultation draft " Planning for Gypsy and Traveller Sites" in December 2004. All parties agreed that it was a material consideration as a draft policy.
15. The evidence at the inquiry, and the conclusions of the Secretary of State, showed that a very considerable requirement exists for the provision of more gypsy caravan plots in Eastern England. Evidence put before the inquiry and put before me showed that as at July 2005, there were 1201 unauthorised caravan plots in Eastern England, as against 1782 authorised plots. In Cambridgeshire the figures were 290 unauthorised caravan plots as against 884 authorised plots, and in the South Cambridgeshire District there were 183 unauthorised as against 342 authorised plots. Those figures are derived from a biennial survey which local authorities are required to carry out. The unauthorised plot figure represents the numbers of caravans which are stationed at the time of the relevant surveys, and of course is not necessarily reflective of the requirement for additional plot provision in a County or a district council area, because the transient lifestyle inherent in gypsy or traveller life makes the matching of requirements to demand less exact. But on any view there was a strong planning case for provision to be made in appropriate locations.
16. Of course if one fails to provide sufficient plots, three groups of persons suffer

(a) The gypsies themselves, who often resort to taking up residence on unauthorised sites in considerable numbers, as has happened at Smithy Fen

(b) The residents who live near such sites, who feel aggrieved that their surroundings are visited with significant unauthorised development and by the effects of large numbers of people attaching themselves to a settlement which may not have the capacity to absorb them

(c) The wider public, in whose interest the rural landscape is protected.

At the same time, provision for gypsies and travellers will very often only be capable of being made outside the bounds of existing settlements or residential areas, where planning policies usually seek restraint. The provision of sites for travellers and gypsies can also provoke strong feelings among existing residents, and can also raise highways, landscape and amenity issues.

17. Given these competing considerations, planning authorities and the Secretary of State can have a difficult task to perform when determining such applications.

F The Cases for the Parties at Inquiry

The Claimants' cases

18. At the inquiry, both sets of Claimants (who were Appellants at the inquiry) were jointly represented by Counsel (Mr Willers) and called evidence. In outline their cases were

(a) Each of them had gypsy status

(b) Limited weight should attach to HG 23 because of the lack of a quantitative assessment

(c) Other Local Plan policy should attract limited weight for the same reason

(d) Each criterion in HG 23 was met

(e) Approval of the development would not lead to a precedent for further development on Smithy Fen

(f) There were material considerations to outweigh any conflict with Development Plan policy

(i) The general need for gypsy caravan sites, which required the making of additional provision in the Eastern Region

(ii) The Appellants had had great difficulty in finding a site to live on, many of them having been evicted from another site in Hertfordshire. All of them are related to families already living in authorised plots on Smithy Fen. If planning permission were to be refused, they would face eviction and would have to live on the roadside. They could not afford any of the other authorised plots available at Smithy Fen

(iii) They had a need for educational provision for their children to be educated locally

(iv) The Appellants suffered from a number of health problems requiring significant levels of care both by local GPs but also by Addenbrookes' Hospital in Cambridge;

(v) Refusing planning permission would be disproportionate and would be in breach of Article 8 of the European Convention on Human Rights.

(g) If it were inappropriate to grant a " permanent" planning permission, permission should be granted for a time period that would enable the local planning authorities to have sufficient time to take account of the county wide quantitative assessment now under way, and to identify suitable sites for the occupants.

The Council's case

19. The Local Planning Authority argued as follows

(a) It disputed that the Appellants were gypsies to whom HG 23 applied, save for John Sheridan and Danny O'Rourke

(b) That even if they were gypsies, the criteria in the policy were not met because of amenity, visual, landscape and highway impacts

(c) If the proposals were not for gypsies within HG 23, there would be a breach of other countryside protection policies in the Development Plan.

(d) Provision had been made by the Council at Chesterton Fen for known gypsies who pass through the area

(e) The grant of any or all of the permissions would set an undesirable precedent because the clear demand for sites would " create a visual context and give the green light for yet further development" (the way the Council's case was put was succinctly summarised by the Inspector at paragraph 7.24 of his report). That would lead to the development of one large caravan site, which would have damaging effects on the landscape;

(f) There was no " need" for those identified as gypsies to be located at Smithy Fen as opposed to elsewhere. It defined " need" as arising only " for planning purposes…..if there is some land use reason why their requirement should be met." There was no need for sites either at Smithy Fen or in the District, which already accommodates over 60% of the County's unauthorised sites and just over 44% of its authorised sites;

(g) In fact available authorised sites existed at Smithy Fen, and another 16 sites at Chesterton Fen. The Appellants had not demonstrated that they had given proper consideration to alternative sites;

(h) While personal considerations are relevant, the claimed health and educational needs did not require that the Appellants live at Smithy Fen. The circumstances of Mr and Mrs McCarthy (who were elderly)were recognised, but they were not sufficient to outweigh the harm caused and the conflict with planning policy.

(i) The ECHR provided for a right to respect for a person's home (Article 8), and the qualified right to peaceful enjoyment of possessions (Article 1). The protection of the environment could justify an interference. In this case any interference with Article 8 rights was in pursuit of legitimate aims and was proportionate.

(j) As to the grant of a temporary permission , it was unrealistic to expect that the future quantitative assessment would identify a site for the Applicants. It is in any event unlikely that any sites would be found in South Cambridgeshire, which had already done enough, and was likely to retain a criteria based approach. No sites were likely to be identified before 2007.

The Cases for other Objectors

20. Cottenham Parish Council argued that

(a) The presence of gypsies at Smithy Fen had led to fears that there would be an increase in crime and anti-social behaviour, which was a material planning consideration;

(b) The grant of permission for even a single further plot would lead to pressure for further plots at Smithy Fen. That would lead to further development on open areas, to the attraction of other travellers, and to pressure on schools and the local surgery ;

(c) The personal circumstances of the Appellants, including those relating to education and health carried little weight in this case;

(d) The criteria in Policy HG 23 were not met, and therefore a grant of permission would conflict with the Development Plan.

21. Other objectors appeared at the inquiry. Their cases do not require being set out in this judgement.

G The Decision Letter Under Challenge, and Related Passages in the Inspector's Report

22. The relevant parts read as follows ("IR" refers to the Inspector's Report and gives the appropriate paragraph reference). I have inserted the paragraphs referred to where they touch on the arguments addressed to me.

"8. Section 38 (6) of the Planning and Compulsory Purchase Act 2004 requires that proposals shall be determined in accordance with the development plan, unless material considerations indicate otherwise. In this case, the development plan is the Regional Spatial Strategy for the East of England (RPG9), the Cambridgeshire and Peterborough Structure Plan 2003 and the South Cambridgeshire Local Plan 2004. The Secretary of State agrees with the second Inspector that the policies most relevant to the appeals are those identified at IR5.2 - 5.5.

9. Material considerations that the Secretary of State has taken into account include Planning Policy Guidance Note 3 (PPG3): Housing; and Planning Policy Statement 7: Sustainable Development in Rural Areas; Circular 1/94 - Gypsy Sites and Planning; Circular 18/94 - Gypsy Sites Policy and Unauthorised Camping. The Secretary of State has had regard to the DETR letter mentioned in IR5.5. The Secretary of State has also taken into account the Consultation Paper; Planning for Gypsy and Traveller Sites dated December 2004. Although this is a consultation draft and its policy may be subject to change, it is a material consideration indicating the Government's current thinking on gypsy sites and planning. The Supplementary Planning Guidance Cottenham Village Design Statement 1994 is also a material consideration. The Secretary of State has also taken into account as a material consideration the Government Response to the ODPM Select Committee's Report on Gypsy and Traveller Sites (Cmnd 6465, January 2005). As this document was a published statement of the Government's response to a Select Committee of Parliament at the time of the inquiry, the Secretary of State considers that this was available to all the parties and that it is not necessary for him to refer back to parties on this document, in the interests of natural justice.

Main considerations

10. The Secretary of State considers that the main issues in deciding appeals 1, 2 and 3 are:

gypsy status of the appellants;

whether the proposals accord with the development plan;

whether the appeals would harm the character and appearance of the countryside;

gypsy policy;

precedent;

the personal circumstances of the appellants;

whether there are alternative sites; and

the general need for gypsy caravan sites in the area (IR 13.2).

and considers each in turn below^[1].

11 . Appeals 2 and 4 (the Enforcement Notice Appeals) are then dealt with in relation to the period of time given for compliance with the Notices (IR13.3).Appeals 5 and 6 are dealt with separately and concern whether or not planning permission should be granted for residential caravan development on other land at Smithy Fen (IR13.4), on plots which are described in IR13.65.

Gypsy Status of the appellants

12. The Secretary of State accepts that the correct approach under current planning policy as set out in Circular 1/94 is to consider Gypsy status in accordance with the statutory definition of "gypsy" as interpreted by the Court of Appeal in Wrexham County Borough Council v The National Assembly for Wales (2003) ('Wrexham") (lR13.8). On that basis, for the reasons given in IR 13.11 the Secretary of State agrees with the Inspector that both Danny O'Rourke, and John Sheridan are Gypsies.

13. For the reasons given in IR 13.9 and 13.10 the Secretary of State agrees with both Inspectors and the Council that the appellants named in those paragraphs do not meet the statutory definition of Gypsy as interpreted by the Court of Appeal in Wrexham. On that basis, under current planning policy those appellants do not enjoy Gypsy status.

14. The Secretary of State however, considers that, for the purpose of determining the issue of Gypsy status in relation to those appellants, he should also take into account the change to the definition of Gypsy which is proposed in paragraph 12 of the Planning for Gypsy and Traveller Sites Consultation Paper. In its Response to the ODPM Select Committee's Report on Gypsy and Traveller sites, the Government stated its proposal to update the definition to reflect the fact that nowadays many Gypsies and Travellers stop travelling permanently or temporarily because of health reasons or caring responsibilities but still want to maintain their traditional caravan-dwelling lifestyle. Whilst the Secretary of State acknowledges that Planning for Gypsy and Traveller Sites remains in draft form, he considers that he should give effect to the Government's proposed updated definition in this case, having regard to the particular circumstances in which those appellants have ceased to travel (IR13.9 and 13.10). For these reasons,, the Secretary of State is satisfied that he should determine the appeals on the basis that Mr and Mrs McCarthy, Bridget Gammell, Margaret O'Brien, Nelly Quilligan, Philomena Sheridan, Kathleen Gammell and Kathleen Sheridan also enjoy the status of Gypsies. He considers that Ann Sheridan (Appeal 3) also enjoys Gypsy status on the same basis. .

15. The Secretary of State considers that as Fred and Margaret Donoghue and Jimmy Sheridan (Plot 4) failed to appear at the inquiry or provide any written evidence of their lifestyle there is insufficient evidence to show that they are Gypsies (IR13.12). The Secretary of State considers that it is for the appellants to put forward evidence to establish that they enjoy Gypsy status. He considers that as neither Margaret Quilligan nor Michael Hegarty appeared at the Inquiry and did not supply proofs of evidence, it is not possible to conclude that they are Gypsies (IR13.67).

Development Plan

16. For the reasons given in IR13.15, the Secretary of State agrees that, in relation to those plots which are for occupation by persons other than those whom he has found to be Gypsies, the proposals are contrary to the countryside policies in the Structure Plan. They are also contrary to the Local Plan Policy SE8 for the reasons given in IR 13.16.

17. For the reasons given in paragraphs 12 to 14 above, the Secretary of State has concluded that the appellants named in those paragraphs are Gypsies. In relation to those plots which are for occupation by those appellants, he considers that the most relevant local planning policy is HG23, and therefore that the position set out by the Inspector at IR 13.18 applies, i.e. that the countryside policies in the local plan provide a general context, but one which could be outweighed if there is compliance with the more specific gypsy policy criteria set out in Policy HG23 in the local plan.

18. For the reasons given in IR13.20 -13.21 the Secretary of State agrees with the Inspector that the Local Plan Policy HG23 is not based on a quantitative assessment of need for Gypsy accommodation as required by Circular 1/94. The Secretary of State agrees with the Inspector at IR 13.21 that, although the local plan is deficient in relation to its assessment of the need for gypsy accommodation, Policy HG23 sets out clear and realistic criteria for Gypsy sites, and that the Council has identified a location suitable for Gypsies at Chesterton Fen (Policy CNF6). Despite the fact that neither Policy HG23 nor CNF6 have been based on a quantitative assessment of need, he agrees with the Inspector that the local plan has been statutorily adopted, and that considerable weight should be given to Policy HG23 in assessing the suitability of plots at Victoria View for use as a gypsy caravan site.

19. The Secretary of State agrees with the Inspector at IR 13.22, for the reasons given in that paragraph, that the appropriate interpretation of the wording at the beginning of Policy HG23 should be that an applicant should prove that he or she has Gypsy status. The Secretary of State has considered this issue in paragraphs 12 to 15 above.

20. The Secretary of State considers that Policy HG23 sets out 9 criteria that have to be met if planning permission is to be granted for Gypsy caravan sites. The Secretary of State considers that 6 of the 9 criteria are relevant to these proposals i.e. those identified by the Inspector as well as Criterion 1 (location in respect of schools, shops and other local services) and he has assessed the appeals against the relevant criteria (IR13.23).

(The relevant paragraphs of the Report read

"13.21 I recognise that Circular 1/94 says that local plans should make a quantitative assessment of the amount of. gypsy accommodation required. The Council have not done this and, to that extent, the local plan is deficient. The Circular also says, however, that local plans should wherever possible identify locations suitable for gypsy sites and where this is not possible they should set out clear, realistic criteria for suitable locations, as a basis for site provision. So, the Circular recognises that sometimes it might not be possible to identify locations suitable for gypsy sites. In this District, however, a location suitable for gypsies, at Chesterton Fen, has been, identified, albeit based on consultation rather than on a quantitative assessment. There is only speculation, and no hard evidence, to show that it could not be taken up. Policy HG23 does set out, in my view, clear realistic criteria for other gypsy sites. I conclude that while the local plan can be criticised it is statutorily adopted and it is still appropriate to attach considerable weight to policy HG23 in assessing the suitability of plots at Victoria View for gypsy caravans.

13.22 The wording at the beginning of Policy HG23 indicates that proposals for caravans for gypsies will only be considered when the need for a site is shown to be essential to enable the applicants to exercise a travelling lifestyle for the purpose of making and seeking their livelihood. The appellants criticise this wording because it seems to place a burden on the shoulders of the applicant to prove that the site is essential for his or her particular travelling lifestyle, rather than just accepting that proven gypsies need caravan sites (6.13). The Council's witness indicated, however, that, in practice, this part of the policy is interpreted to mean no more than that an applicant should prove that he/she has gypsy status. I consider that it is appropriate to follow that approach. At the Inquiry it was confirmed by both main parties that the policy should be interpreted as relating to 'occupants' of sites rather than to 'applicants'.

13.23 Policy HG23 then indicates that 9 criteria have to be met if planning permission is to be granted for gypsy caravan sites. Of these, 5 are relevant to these appeals. The appellants maintain that the policy criteria should be interpreted 'liberally' (6.15). I do not agree with that approach. The criteria do involve subjective judgments but they should not, in my view, be approached in a biased manner in favour of development regardless of the context.")

Criterion 1 - location in respect of schools. shops and other local services

21. The Secretary of State considers that Criterion 1 is satisfied by the location of Smithy Fen in relation to local services in Cottenham, and notes that the Council accepts this stance (IR6.16).

Criterion 2 - impact on the amenity of existing local residents and adjoining land uses. and avoidance of concentration of sites

22. The Secretary of State is satisfied that Criterion 2 is met in this case, for the reasons given in IR 13.30, and he does not consider that the issue of concentration of sites raises any objections to these appeals, in the circumstances of this case.

Criteria 3 and 4 - the effect on the rural character and appearance of the surroundings

23. The Secretary of State recognises that many gypsy sites may be found in rural or semi-rural settings and that Policy HG23 acknowledges that new gypsy sites can be located in the countryside. Care, however, must be taken to avoid encroachment on the open countryside (lR13.32). The Secretary of State agrees with the Inspector at IR 13.33 that the countryside at Smithy Fen is generally open and flat, with wide views and little natural screening. He also agrees that it is inherently difficult for such a sensitive fenland landscape to assimilate Gypsy caravan development without causing harm to the rural character and appearance of the locality. He agrees that such harm has already been caused by the existing lawful gypsy caravan development at Smithy Fen

(IR 13.33). He considers that the fact that lawful caravan development is present in this locality should carry little weight, since that existing development already causes harm to the open fenland landscape and it would be undesirable for further development of like kind to be added to it. The Secretary of State agrees that any further addition of plots would detract unacceptably, in terms of rural appearance and character, from the fenland landscape at Smithy Fen (IR13.34).

24. For these reasons, he disagrees with the first Inspector's judgement in paragraph 13 of the quashed decision. The Secretary of State also agrees that screening such development by new planting would look unnatural and so not provide an acceptable means of remedying or limiting that harmful effect on the rural character and appearance of the countryside in this location. For these reasons, not only does he agree with the Inspector that individual plots 8 and 12 fail these criteria of Policy HG23 (lR13.34 -13.35) but he also reaches the same conclusion in relation to other plots proposed for occupation by Gypsies in these appeals. He agrees with the Inspector at IR 13.36 that the combined impact of all the plots on the rural character and appearance of the area would be that much more harmful, and contrary to criteria 3 and 4.

Criteria 5 and 9 - parking. highway access. service provision and use of public rights of wav.

25 The Secretary of State agrees with the Inspector that road traffic generated by the appellants would lead to some inconvenience to other road users due to the narrowness of the highways concerned. He agrees with the Inspector at IR 13.40 that although this is a negative aspect of the development, it is not one which would lead to a material conflict with criteria 5 and 9.

26. For the reasons given, the Secretary of State considers that the proposals fail to meet criteria 3 and 4 in Policy HG23, relating to the protection of the rural character and appearance of the surrounding countryside. He therefore concludes that none of the proposals complies with Policy HG23 in the Local Plan.

Other material considerations

Precedent

27. For the reasons given in IR 13.42-13.47 and 13.57 the Secretary of State agrees with the Inspector that allowing these proposals could lead over time to pressure to develop Gypsy plots across the whole 7.5ha. rectangle of land at Smithy Fen which has potential for at least 130 Gypsy caravan plots. If planning permission was granted it would, in the particular circumstances of this case, be likely to set a precedent and encourage other Gypsies to the Smithy Fen area in the hope of obtaining planning permission. The Secretary of State agrees with the Inspector that setting such a precedent is undesirable, because of the current adverse impact on the character and appearance of the countryside caused by the existing caravans, and the potentially harmful traffic impact on the narrow lanes. He considers that granting planning permission is likely to be seen to establish a precedent for Gypsy sites in the area and gives this considerable weight.

(Those paragraphs of the Report read

"13.42 The Council, the Parish Council , the Cottenham Residents Association and interested persons all firmly believe that if any planning permission is granted for caravan development at Victoria View it would establish a precedent that would lead eventually to the permanent caravan development of all the land between the lawful northern and southern gypsy caravan sites. This would in turn, they maintain, be likely to lead to significant crime and antisocia1 behaviour, and to the fear of such, in the local, settled community, and to a very seriously harmful impact on the rural appearance and character of the area and to loss of safety, convenience and amenity for people using the Smithy Fen droves and footpaths (7.23 to 7.26, 8.6 to 8.9 & 9.6). There are also concerns that large and fluctuating numbers of gypsies and their children would cause serious disruption to local health and education facilities to the disadvantage of the settled community (8.8).

13.43 The appellants reject this argument maintaining that each case should be determined on its merits. In this particular case it is relevant, they say, that Victoria View does not encroach into the gap between the lawful developments and there are particular personal circumstances involved which would not necessarily be so in future cases (6.33 to 6.35),

13.44 In my view the concerns about precedent are not merely generalised ones. There is at Smithy Fen a well-defined 7.5ha rectangle of land that has seen a lot of gypsy caravan development, much of it unauthorised (2.1). It is subdivided into plots of similar character, some well-developed, some less so and some relatively undeveloped. They are laid out in a manner that would facilitate total development, being served by a reasonably well-defined internal road system with services (8.6). There is currently a very considerable demand from gypsies, and from persons who, arguably, may have lost their gypsy status, to live at Smithy Fen on land that does not have planning permission. Much of this is from extended family groups. These include all the current occupants of Victoria View, other potential occupants of Victoria View (such as the .O'Donoghue's), existing occupants of other unauthorised land within the rectangle (such as land to the rear of the lawful plots at Setchel Drove), existing applicants for planning permission for caravan development at Smithy Fen (such as Michael Hegarty and Margaret Quilligan) and gypsies who currently unlawfully occupy land at Pine View in the gap between Setchel Drove and Orchard Drive/Water. Lane.

13.45 In these particular circumstances I consider that it is highly likely that the grant of planning permission by the FSS for gypsy or any other type of caravan development at Victoria View would set a precedent for further similar gypsy or other caravan development at Smithy Fen. It would be interpreted as a signal that Smithy Fen is a suitable location for more caravan development. To begin with this further development would probably be unauthorised. Any grant of planning permission for Victoria View would be likely, in my view, to encourage the Pine View occupants to remain in the gap between the northern and southern lawful sectors and to encourage others to come to the locality in the hope of obtaining planning permission retrospectively. Some further development might well, with an up-to-date FSS permission at Victoria View, gain planning permission if the circumstances were comparable. For example, adjacent land to the east of Victorian View and land to the rear of authorised plots in Setchel Drove appear very similar and there could well be directly comparable personal circumstances pleaded. Ultimately, the justification for retaining the diminished gap between the northern and southern lawful gypsy sectors would become less and less.

13.46 The consequences of granting planning permission could well be, therefore, extensive further caravan development at Smithy Fen amounting to some 130 plots at least (7.24). Extensive caravan development would lead to considerable conflict with criteria (3) and (4) of policy HG23, the effect on the rural character and appearance of the surroundings and, because of the volume of traffic involved, to conflict with criteria (5) and (9) the safe, convenient and pleasant use of the rights of way of Smithy Fen.

13.47 Having regard to the judgment in N Smith I consider that concern about the likelihood of increased crime and antisocial behaviour, and the fear of such, arising from extensive further gypsy caravan development at Smithy Fen is not material as it based on the unfair belief that large-scale gypsy development is bound to lead to crime and antisocial behaviour. I give little weight to the impact that relatively large and. fluctuating numbers of gypsies and their children could have on local health and education services as there is no direct evidence from the services themselves that they would not be able to cope. Nonetheless, because of the impact that further extensive development would have on the rural appearance and character of the area and on the safe, convenient and, pleasant use of the droves at Smithy Fen I consider that considerable weight should be attached to the matter of precedent."

"13.57 In coming to an overall conclusion I consider that particularly significant weight should be given to the likely precedent effect and to the cumulative consequences of development in terms of the harmful impact that further extensive caravan plots at Smithy Fen would have on the rural appearance and character of this fenland landscape. For these reasons I conclude that a permanent planning permission would be inappropriate.")

Personal circumstances of the appellants

28. The Secretary of State has considered the health and education needs of the majority of the appellants on the basis that they are Gypsies for planning purposes, and has accordingly given these needs greater weight than the Inspector (I R 13.51). He has also considered the general need for Gypsy sites in the area, the appellants' personal needs for a site, and the availability of alternative sites.

(The relevant paragraphs 13.48-13.51 of the Inspector's Report read:

" Personal circumstances

13.48 The relevant personal circumstances of the occupants of Victoria View include their personal need for accommodation, the presence of relatives on nearby lawful sites, their wish to live together in extended family groups for care and support in accordance with Irish gypsy tradition, the need for several occupants to get access to local health facilities and the need' for several children to get access to local education facilities. Personal planning permissions for named individuals are therefore sought (6.44 to,6.49).

13.49 These personal circumstances are material considerations and the grant of personal planning permissions for the occupants to remain at Victoria View would bring clear and substantial benefits to the persons concerned, especially education benefits for the children. However, the benefits are not exceptional or unusual, nor are they benefits that could only be obtained by the occupants living at Smithy Fen.

13.50 Furthermore, planning permissions normally run with the land and it is seldom desirable to provide otherwise. The caravan development involved at Victoria View includes works of a permanent nature and the particular permissions sought would not be limited in time but would enable ongoing occupation by dependents of the named individuals. In practice it must be assumed that the development would remain long after some of the personal circumstances involved have ceased to be material.

13.51 The personal circumstances of the occupants of Victoria View are little different to the personal circumstances that can often be pleaded by applicants who want to live in the countryside near their relatives and I consider that they should not carry very much weight in the determination of these appeals; especially as I have found that the majority of the occupants are not gypsies for planning purposes.")

Health needs

29. The Secretary of State accepts that the appellants have a variety of health care needs. These health needs are currently being met from the sites and are important material considerations. The Secretary of State acknowledges that the appellants have relatives living on the authorised sites at Smithy Fen and want to be near them and live together in extended family groups for care and support, but considers that the appellant's health care needs could be met from other sites.

Education needs

30. The Secretary of State accepts that the appellants seek continuity of education for their children. None of the children have identified any special educational needs that could not be met elsewhere. The Secretary of State accepts that there are advantages in a settled education for the children and gives significant weight to the benefits of continuity of educational provision.

Conclusion on health and education needs

31. For the reasons given at IR13.48-13.51 the Secretary of State agrees with the Inspector that the health of the appellants and educational needs of their children are not exceptional or unusual and could be met from other sites. Although he gives greater weight to these personal circumstances than does the Inspector, having regard to the Gypsy status of the majority of the occupants, the Secretary of State does not consider that they override the serious harm which he has found to the character and appearance of the countryside.

General need for sites

32. The Secretary of State agrees with the Inspector at IR 13.55 that there is a general need for further Gypsy sites in the East of England although the need in South Cambridgeshire is unclear in the absence of a quantitative assessment of need. He accepts that the approval of all the plots would make a significant contribution to meeting that general need.

(The Inspector's Report reads (his italics)

"General need for gypsy caravan sites

13.55 There is an undisputed need for further gypsy sites in the country as a whole and in the East of England region. Whether or not there is a need for further gypsy sites in South Cambridgeshire District, and if so how much, is harder to determine accurately without a quantitative assessment of need. There is, however, no functional need for Danny

O'Rourke or John Sheridan, the only occupants that I have found to be gypsies, to live at Smithy Fen or in South Cambridge although, clearly, it is convenient and beneficial for them to do so, as other family members live nearby. The approval of plots 8 and 12 as gypsy caravan sites would, nevertheless, contribute to meeting the general need for gypsy sites. This is a factor in favour of the grant of a limited planning permission for part of the land at Victoria View. {If it is found that all occupants of Victoria View are gypsies then the approval of all the plots would clearly contribute more significantly to meeting the general need for gypsy sites.}")

Appellants' need for sites

33. The Secretary of State considers that the majority of the appellants are Gypsies for planning purposes, and that they have a personal need for a site

Availability of alternative sites

34. The Secretary of State acknowledges the appellants' case that they have limited income and nowhere else to live and if forced to move would have to live by the roadside (IR13.54). The Secretary of State agrees that would be an undesirable outcome. The Secretary of State is, however, not persuaded that the appellants have established that no alternative sites are available to them (IR7.40/7.41 and 13.53). He concludes that, although there is a general need and that the appellants have a personal need for sites, these considerations do not outweigh the serious harm to the countryside which would result from allowing these appeals.

(Those paragraphs read

"Alternative sites

13.52 The occupants of Victoria View maintain that they have limited income and- capital and nowhere else to live and that if they are forced to move they would have to go "on the road", causing stress and anxiety and depriving individuals of proper health care and education facilities (6.45).

13.53 This would clearly be an undesirable outcome. On the other hand the occupants have not searched for alternative sites but were attracted to Victoria View by the land being for sale and it being close to their relatives living on lawful plots. They maintain that they could not go to other sites at Smithy Fen occupied by their gypsy relatives. I accept that this is probably true for most of the occupants of Victoria View given that I have found that they are not gypsies, for planning purposes. In respect of Danny O'Rourke and John Sheridan, whom I have found to be gypsies, the possibility of suitable vacant land becoming available for their occupation at Pine Lane or Water Lane, Smithy Fen , or Chesterton Fen appeared to me to be lightly dismissed by the appellants.

13.54 There is, I acknowledge, a real and a serious planning problem about finding alternative sites for persons from a gypsy background who have lost or abandoned their gypsy status. I cannot reconcile the problem of what to do about people who want to live in caravans in the countryside, in accordance with tradition, with the restrictive planning policies seeking to protect the countryside. The search by such people for suitable sites to meet their accommodation needs is likely to be particularly difficult. This is a matter that must be kept in mind in reaching the overall conclusions on these appeals.") .

Temporary Planning permission

35. Like the Inspector the Secretary of State has considered the request of the appellants for a temporary planning permission for three years as an alternative to permanent planning permission. He has considered whether temporary planning permission should be granted in the light of his policies in Circular 11/95, The Use of Conditions in Planning Permission, with particular reference to paragraphs 109 and 110 of this Circular. The Secretary of State does not consider that temporary planning permission is justified, given that the development would cause serious harm to the countryside which could not be mitigated by landscaping, and that there is insufficient certainty that the Council would identify sites for the occupants in that time period (IR 13.58).

(That paragraph reads

"13.58 Similarly, I do not consider that a temporary 3 years permission, as the appellants request as an alternative, would be appropriate. There is insufficient certainty that the Council would identify sites for the occupants in that time period and a 3 year permission would give the appellants no incentive to seek alternative sites, leading inevitably to further protracted enforcement action in the future.")

Human Rights

36. The Secretary of State recognises that dismissal of the appeals would require the Gypsies to vacate the sites and may result in them having to use unauthorised sites or living by the road side and this would lead to an interference with their rights to home and family life (lR13.60). However, such interference must be balanced against the wider public interest in pursuing the legitimate aims of Article 8 of the European Convention on Human Rights, which include the protection of the environment. Given that the continued use of the appeal sites for Gypsy caravan sites would be seriously harmful to the need to protect the open countryside the Secretary of State agrees with the Inspector at IR 13.60 that the public interest can only be safeguarded by the refusal of planning permission. He considers that dismissal of the appeals would not place a disproportionate burden on your clients, nor would it result in a violation of their rights under Article 8 of the Convention (IR 13.62).

(Those paragraphs of the Report read

13.60 Submissions were made by the appellants relating to Article 8 of the European Convention on. Human Rights. I recognise that dismissal of the appeals would interfere with the occupants' homes and family life. However this must be weighed against the wider public interest. For the reasons given above, I have found that the continued use of the appeal sites for caravan development would be harmful to the need to protect the open countryside and I am satisfied that this legitimate aim can only be adequately safeguarded by the refusal of permission.

13.61 It has been held in the European. Court of Human Rights that: when a dwelling has been established without the planning permission which is needed under national law there is a conflict of interest between the right of the individual under Article 8 of the Convention and the right of others' in the community to environmental protection. When considering whether a requirement that the individual must leave his or her home is proportionate to the legitimate aim pursued it is highly relevant whether or not a home was established unlawfully. If the establishment of a home was unlawful the position of the individual objecting to an order to move is less strong.

13.62 0n balance I consider. that. the dismissal of the appeals would not have a disproportionate effect on the occupants of Victoria View.")

Conclusion

37. The Secretary of State considers that the proposals are seriously harmful to the character and appearance of the open countryside, and that these effects could not be over come by landscaping. For those reasons, the proposals fail to comply with policy HG23 of the Local Plan and are contrary to development plan policies for the protection of the countryside. The Secretary of State also considers that allowing these appeals is likely to create a precedent for further development at Smithy Fen, which would be undesirable given the adverse impact on the character and appearance of the countryside already caused by the existing lawful development. The Secretary of State has carefully considered the general need for sites in the area, the appellants' need for a site, the availability of alternative sites, and the health and educational needs of the appellants and their children. He concludes that these factors do not outweigh the serious harm to the countryside done by the appeal proposals. He has considered the possibility of temporary planning permission but has concluded that the proposals would cause serious harm to the countryside, which could not be mitigated by conditions.

38. The Secretary of State concludes that there are no other material considerations sufficient to outweigh the serious harm to the open countryside or to indicate that he should determine the appeals other than in accordance with the development plan, and that the appeals should be dismissed."

H. Legal Framework

23. I shall deal with specific legal arguments as I deal with the particular challenges. The general principles affecting decision making are:

(a) As decision maker the Secretary of State is required to have regard to the statutory development plan and to all material considerations: see section 70 TCPA 1990. He must determine the appeals in accordance with the provisions of the statutory development plan unless material considerations indicate otherwise ; see section 38(6) Planning and Compulsory Purchase Act 2004.

(b) The weight to be attached to a material consideration is a matter for the Secretary of State and not for the court: Tesco Stores Ltd v Secretary of State for Envt [1995] 1 WLR 759 (HL).

(c) He must take his own policy into account as a material consideration. He must interpret it correctly, and give reasons if he decides not to follow it. Gransden (EC) v Secretary of State for Envt [1986] JPL 519 at 521

(d) The Secretary of State must act fairly.

(e) He must give proper adequate and intelligible reasons for his decision which explain his conclusions on the principal important controversial issues in the appeal. The degree of particularity depends on the nature of the issues falling for decision, and need not refer to every material consideration but to the main issues in dispute. A reasons challenge will only be sustained if the party aggrieved can satisfy the court that he has been genuinely prejudiced by the failure to provide an adequately reasoned decision: see S Bucks DC v Porter (No 2) [2004] 1 WLR 1953 para 36 (HL)

(f) He must act in a way which is not incompatible with a Convention Right under the European Convention on Human Rights; section 6 Human Rights Act 1998. Article 8 of the Convention should normally be regarded as an integral part of the decision maker's approach to material considerations, and not in effect as a footnote: see Lough v First Secretary of State [2004] EWCA Civ 905 [2004] 1 WLR 2557 per Pill LJ at para 48.

I Grounds of Challenge

24. The grounds of challenge were as follows

(a) Both sets of claimants to this court

(i) Both sets of claimants to this court argue that the Inspector and Secretary of State were wrong to consider the potential for future unauthorised unlawful development when considering the question of precedent.

(b) The Sheridan Group

(i) The Sheridan group argue that when considering whether to grant a " temporary" planning permission (i.e. one where a condition requires that the use cease after a specified period) it was perverse of the Secretary of State to conclude that there was uncertainty that sites would be found by December 2008, when the policy framework required that sites should be identified by December 2007. In truth the argument was actually that that his reasoning was inadequate.

(ii) The Sheridan group also argue that it was perverse of the Secretary of State to conclude that the Claimants had not demonstrated that there were no alternative sites available to which they could relocate. In truth the argument was actually that that his reasoning was inadequate.

(c) The McCarthys

(i) Mr and Mrs McCarthy argue that their case was not considered properly by the Secretary of State. They say that he was under a duty to give it separate consideration, and that he did not do so. Particular emphasis was placed before me on the case argued for them on the grounds of their ill health.

(ii) They also argue that the decision not to grant a "temporary" planning permission amounted to an unlawful interference with their rights under Article 8 of the European Convention on Human Rights, and that the Secretary of State failed to adopt the two stage proportionality test which Mr Willers says is to be found in Samaroo v Sec of State for Home Department [ 2001] EWCA Civ 1139 per Dyson LJ.

J Discussion and Conclusions

25. I shall start by dealing with the ground common to both cases, namely precedent. The creation of a precedent for other development which would have harmful effects is certainly capable of being a material consideration, provided it is based on more than mere fear or generalised concern: see Collis Radio Ltd v Secretary of State for Envt [1975] 29 P & CR 390 Rumsey v Secretary of State for Envt and Waverley BC [2000] 81 P & CR 465, and Poundstretcher Ltd v Secretary of State for Envt [1988] 3 PLR 69.
26. Mr Richards and Mr Willers said that a distinction should be drawn between other lawful development and other unlawful development, on the basis that steps can be taken to remove the latter, and that it would be wrong to regard the prospect of unlawful development as a material consideration in deciding whether to grant a permission.
27. I do not accept that argument. The reason why the setting of a precedent is a potentially material consideration is because it may lead to events occurring which have effects which are of significance in planning terms, such as an effect on the appearance of the area, on its amenities, on the use of facilities, on highway safety or on other planning considerations. If such effects would be harmful, the decision maker is entitled to take them into account as material considerations, which could, in appropriate cases, justify refusal. Why must it be any different if such development were unauthorised? Unauthorised development can itself affect the appearance of an area, or the use of the local road network, or in the case of unauthorised residential development, the provision or take up of services in an area. It would be illogical if such potential consequences were prevented from being material even if the decision maker had concluded that such events and effects were likely. Of course there may be arguments to be made to the decision maker on whether the same weight should be attached to the potential for unauthorised development, because steps can be taken to seek its removal, but that is not to deprive it of potential relevance as a material consideration, and matters of weight are for the decision maker and not for this Court.
28. The principle is a potentially important one. Mr Richards and Mr Willers argue that the unlawful acts of others cannot be regarded as a consequence of a grant of permission, so that their being made more likely would be an immaterial consideration. If they are right, an Inspector or planning authority would be prevented (for example) from rejecting a retail service access arrangement whose defect was that it would encourage illegal parking, or from imposing a condition on a quarrying consent to take steps to erect fences or barriers to prevent others from fly-tipping. I regard that as not only unrealistic, but also quite out of step with the everyday experience of development control.
29. In my judgement the Secretary of State and Inspector were both quite entitled to consider whether the grant of a permission would lead to the attraction of more caravans to unauthorised plots within Smithy Fen, and if so whether the consequences would cause harm, and what weight they should give that factor. I am satisfied also that the Inspector and Secretary of State had material before them to permit a finding that the grant of permission for one or more of the plots applied for would have such effects. I read paragraph 27 of the Decision Letter, together with those passages it adopts from the Inspector's report as making such a finding.
30. I turn now to the two other grounds advanced by the Sheridan group. I have some very real sympathy for the Claimants. They were met by a local planning authority which , notwithstanding the clear intention of policy that further provision should be made for gypsies or travellers in the near future, was raising arguments about the likelihood of that occurring in practice, and in S Cambridgeshire in particular. But while it may have been an unattractive argument, that does not mean that it was therefore devoid of merit, nor that the Inspector and Secretary of State were prevented from concluding that, if a temporary permission were granted, it would last for longer than expected because other alternative sites could be delayed in coming forward.
31. The Inspector concluded that the result of the uncertainty would be that further protracted enforcement action would inevitably occur if a temporary consent were granted (paragraph 13.58). In my judgement such a consideration is a perfectly proper one. However the First Secretary of State did not adopt his Inspector's reasoning but gave his own (cited above). It is important to identify what his reasoning actually was. It will be recalled that he stated that he had considered the request for a temporary permission in the light of paragraphs 109 and 110 of his Circular 11/95 , and then concluded that

"The Secretary of State does not consider that temporary planning permission is justified, given that the development would cause serious harm to the countryside which could not be mitigated by landscaping, and that there is insufficient certainty that the Council would identify sites for the occupants in that time period (IR 13.58)."

32. Those paragraphs of the Circular read

" 109. Advice on minerals permissions is given in Minerals Policy Guidance notes. In other cases, in deciding whether a temporary permission is appropriate, three main factors should be taken into account. First, it will rarely be necessary to give a temporary permission to an applicant who wishes to carry out development which conforms with the provisions of the development plan. Next, it is undesirable to impose a condition requiring the demolition after a stated period of a building that is clearly intended to be permanent. Lastly, the material considerations to which regard must be had in granting any permission are not limited or made different by a decision to make the permission a temporary one. Thus, the reason for granting a temporary permission can never be that a time-limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities. If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted, then the only course open is to refuse permission. These considerations will mean that a temporary permission will normally only be appropriate either where the applicant proposes temporary development, or when a trial run is needed in order to assess the effect of the development on the area.

Short-term buildings or uses

110. Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that intention, or because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified. For example, permission might reasonably be granted on an application for the erection of a temporary building to last seven years on land which will be required for road improvements eight or more years hence, although an application to erect a permanent building on the land would normally be refused."

33. Although the Claimants did not question the use of the Circular, I have very real concerns about the terms of paragraph 109. As written it appears to suggest that if a development is refused a " permanent" permission because it would have harmful effects, that it cannot ever be right to grant permission which is limited in time by condition, and also suggests that the material considerations cannot differ as between the two cases. In my judgement that cannot be right in law, and if intended to be a guide to how authorities and Inspectors should approach the reasons for a decision on the imposition of such a condition, it is far too sweeping. It does not recognise or address those cases where it might be considered that while the harm done by a permanent development would justify refusal, the balance between the reasons for grant and reasons for refusal may be altered if the development is temporary. After all, the effect of a development on its surroundings must be reduced if it limited to (say) 3 years rather than being permanent. The relationship between paragraphs 109 and 110 is also hard to determine. If (see 109) the development would have no unacceptable harmful effects, then one would surely only be considering a " temporary" permission in the sort of circumstances described in paragraph 110.
34. Had the Secretary of State actually adopted the way in which paragraph 109 is written as part of his reasoning, I would have considered that his approach had failed to use adequate or intelligible reasoning. But the fact is that while he had regard to those paragraphs, he did not in fact adopt the approach in paragraph 109. Indeed paragraph 35 of the Decision Letter shows that what he actually did was to conclude that the development would cause serious harm to the landscape which would not be mitigated by landscaping, and then considered what the prospects were that another site would be found in the period of 3 years. He thus did address the balance between the case for the grant of a limited permission and the harmful effects which he found it would have, and concluded that the case for refusal of permission outweighed the case for the grant of permission.. In my judgement that was a reasoned decision which he was entitled to make.
35. The second ground taken by the Sheridans alone related to the treatment of the alternative sites issue generally.
36. It is an oddity about the Decision Letter that the Secretary of State addresses this issue at paragraph 34 under the broader heading of " Personal circumstances of the appellants" , even though the parties had addressed it as a material consideration generally, as had the Inspector, and as had the Secretary of State in the list of main considerations at paragraph 10. Although it would have been preferable had more care been devoted to the writing of the Decision Letter, I do not consider that this undermines his reasoning. I note that in his conclusions at paragraph 37 of his Decision Letter he states that he has addressed " the general need for sites in the area." Further, and perhaps most significantly, the Claimants were seeking personal permissions only. It follows that the issue of fundamental importance under this head was whether sites existed which could accommodate them. It follows that no harm is done to the reasoning process by the confusion over the point at which this head was addressed.
37. The issue here turned in part on whether there were alternative sites to which the Claimants could move if permission was refused. There was some discussion between Mr Mould QC and the Court in argument about whether in such a case it is incumbent on an applicant for planning permission to demonstrate that no alternative sites exist. There can be a danger of turning the principles derived from Secretary of State v Edwards [1994] 1 PLR 62 (CA) into a test which applicants for planning permission must pass. Edwards is a case on whether the existence of alternative sites can justify refusal, not a case on whether it is necessary to prove that there is an absence of alternative sites in order to gain a consent. An applicant for planning permission will only have to show that there is an absence of alternative sites if

(a) The relevant Development Plan policy, Secretary of State's policy, or other policy which is a material consideration states that an applicant will be expected to do so;

(b) His proposal would otherwise cause harm or conflict with policy to a degree which would justify refusal, and he argues that there are reasons why a site must be found to accommodate the use which he proposes. Then the absence of an alternative site may be considered by the decision maker to outweigh the harm done.

38. Plainly the greater the harmful effects, or the more serious the breach of policy, the harder the Applicant will have to work to show that there is no realistic alternative, and that his proposal would effect a real public convenience or advantage which would justify the grant of permission. Thus it is that, at the top end of the scale, in a case of proposed inappropriate development in a Green Belt the evidential and persuasive burden on the Applicant is very substantial. It is less substantial, but may still be significant, lower down the scale.
39. In this case, all the parties must have appreciated that if the Secretary of State had concluded that there would be harmful effects on the countryside, and that the proposal did not for that reason comply with policy HG 23, then he would be bound to dismiss the appeals unless the case for provision at this site outweighed the reasons for refusal; see section 38(6) of the 2004 Act. He found that the grant of permission would make a significant contribution to meeting the general need for sites. His conclusion at paragraph 37 shows that he did not consider that that outweighed the reasons for refusing permission. That was a decision which he was entitled to reach. He was then bound to refuse permission unless he had evidence which led him to conclude that there no alternative sites to which the Claimants could relocate. On the evidence, he was not satisfied that the Claimants could not relocate elsewhere, for the reasons given at paragraph 34 of the Decision Letter and the paragraphs there referred to in the Inspector's Report. The Inspector, who had drawn particular attention to the availability of other authorised sites within Smithy Fen and at Chesterton Fen, was unimpressed by the reasons put forward by the Claimants as to why they could not relocate there, saying that they had been " lightly dismissed."
40. I find nothing in the reasoning of the Secretary of State on this issue which would justify intervention by this Court .
41. I turn now to the McCarthys' first ground, which alleges that their case had not been properly considered on its own merits.
42. Mr Willers says, rightly, that it is the duty of the Secretary of State to address the merits of their case and to give their case separate consideration. But it is conceded by Mr Willers, again rightly, that the Secretary of State was entitled to hold a joint inquiry into the McCarthys' reopened appeal and the appeals of the other Applicants/Claimants, and that he was entitled to issue one Decision Letter. Given the fact that the various sites are located close to eachother in one part of Smithy Fen , it must also be the case, and unobjectionably so, that many of the issues which touched on the McCarthys' appeal also touched on those of their neighbours' appeals, and vice versa.
43. It follows that there is nothing wrong with the Inspector's Report and Decision Letter taking common issues together, provided that those parts which are discrete and relate to their case are also considered in the Decision Letter, subject to their requiring such explicit treatment on the principles set out in S Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at paragraph 36.
44. Mr Willers points out that at paragraph 27, when dealing with precedent, the Secretary of State did not expressly consider the precedent effect of a grant of permission on Mr and Mrs McCarthy's application. But what the Secretary of State did was to adopt the Inspector's reasoning. The Inspector had heard cases from the local planning authority and others that the grant of even one permission would cause an undesirable precedent. That reasoning at paragraph 13.42-3 addresses the arguments put before the Inspector that the grant of permission for any of the proposed plots would set an undesirable precedent. Paragraph 13.45 is written in that context and plainly addresses the effect of the grant of "any" permission at Victoria View. The Inspector had also given specific attention to the harmful effect of the caravan on the McCarthy's plot (Plot 12) at paragraph 13.34. It follows that I reject this ground.
45. Mr Willers says that the health needs of Mr and Mrs McCarthy were not considered separately by the Secretary of State. In my judgement he had no need to do so. Each of the applicants for permission was putting forward evidence that he or she or members of their family had various conditions requiring treatment or attention. One can only have sympathy for anyone with health difficulties, but when one examines the list that was put forward, it is obvious that it contains a number of afflictions which are sadly far from unusual and have very little bearing indeed on any reasonable argument that there was an exceptional case to be made, and very little indeed on why the claimants were required to remain on their current plots as opposed to moving to other plots at Smithy Fen or at Chesterton Fen. As Mr Mould QC pointed out, the case made to the Inspector by the various Appellants (which included the McCarthys) drew no distinction between the strength of the personal circumstances in their case and that of another 6 cases. Indeed the final submissions at the inquiry stated that " all of these individuals have a need for a settled site….." and also argued that the other healthy appellants could be unwell in the future.
46. In my judgement, given the fact that the McCarthys were making a joint case on health grounds in common with others, the Secretary of State was quite entitled to consider their case in the way he did.
47. I deal lastly with Mr Willers' arguments on Article 8 of ECHR. He contends that there is a 2 stage test in Samaroo v Sec of State for Home Department [2001] EWCA Civ 1139 per Dyson LJ, and that the Secretary of State failed to apply it here. Mr Mould QC drew the court's attention to the subsequent Court of Appeal decision in Lough v First Secretary of State [2004] EWCA Civ 905 [2004] 1 WLR 2557 in which Pill and Keene LJJ (Scott Baker LJ agreed with both of their judgements) considered Article 8 and Samaroo in the context of planning decisions.
48. In Samaroo Dyson LJ propounded a 2 stage test, summarised succinctly in Lough at paragraphs 18-19 by Pill LJ:

"18 . The applicant Samaroo was convicted of serious drug offences and made subject to a deportation order. He challenged the order on the ground that it would involve an interference with the right to family life under Article 8(1) of the Convention and that such interference was not justified under Article 8(2). Dyson LJ referred to the doctrine of proportionality, as explained by Lord Steyn in R v Secretary of State for the Home Department ex parte Daly [2001] 2 AC 532, (Daly involved an examination of the privileged correspondence of a prisoner.) Both Samaroo and Daly involved a direct issue between state powers and individual rights. In Samaroo, Dyson LJ stated, at paragraph 19, that

"in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights ? … The essential purpose of this stage of the enquiry is to see whether the legitimate aim can be achieved by means that do not interfere, or interfere so much, with a person's right under the Convention".

19 At paragraph 20, Dyson LJ stated:

"At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention Rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons ?"

Dyson LJ concluded, at paragraph 25:

"I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention Right, the task for the decision maker, when deciding whether to interfere with the Right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention Rights on the other".

49. In Lough nearby residents opposed a new development at Bankside near the south bank of the Thames in London, and claimed in objections at a public inquiry that it would interfere with their residential amenities, which they contended would amount to an interference with their rights under Article 8. They argued that the Inspector had failed to consider whether the interference with their Article 8 rights was necessary and proportionate. At paragraph 23 Pill LJ addressed the scope and relevance of Article 8 in the context in which planning issues fall

" The scope of Article 8 in context

23. It is necessary to consider the scope of Article 8 and its relevance and application in a situation where there are competing private interests between landowners and also a public interest in beneficial land use. "

50. Pill LJ then went on to consider the authorities (both domestic and in the European Court of Human Rights) . At paragraphs 43 to 54 he stated

" 43. It emerges from the authorities:

(a) Article 8 is concerned to prevent intrusions into a person's private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered.

(b) Respect for the home has an environmental dimension in that the law must offer protection to the environment of the home.

(c) Not every loss of amenity involves a breach of Article 8(1). The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances but it must be substantial.

(d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded.

(e) It is also open to the public authority to justify an interference in accordance with Article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the Article.

(f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered.

(g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with Article 8.

(h) The margin of appreciation may be wide when the implementation of planning policies is to be considered.

44. I add that the present alleged breach of Article 8 is based on a departure from the development plan but, following the reasoning in Hatton, where a government scheme regulating movement of aircraft was under consideration, the Court would adopt the same approach whether it is in a departure from the development plan or an application of the development plan itself which is alleged to be in breach of Article 8. Of course, the contents of the development plan, and the procedure by which it is adopted, should be Convention compliant.

Conclusions

45. In the light of the authorities, and the Inspector's findings of fact, Article 8 made no significant impact upon the task to be performed by the Inspector. Article 8 does not achieve the radical change in planning law inherent, although not acknowledged as such by the Appellants, in the submission summarised at paragraph 22 of this judgment that consideration should have been given to the possibility that the benefits achieved by the grant of permission could have been achieved in some other way or on some other site. Article 8, with its reference to the protection of the rights and freedoms of others, and Article 1 of the First Protocol with its reference to a person's entitlement to the peaceful enjoyment of his possessions, acknowledge the right of a landowner to make beneficial use of his land subject, amongst other things, to appropriate planning control. As Sullivan J stated in Malster, at paragraph 89, in relation to Article 1, the prospective developer "is equally entitled to the enjoyment of its possessions."

46. I am far from persuaded that, in circumstances such as the present, domestic law in general, and the planning process followed in this case in particular, fail to have regard to the Article 8 rights of people in the vicinity of the appeal site, including the Appellants. Departure from a development plan, even if it is from a provision entitled 'Protection of Amenity' does not of itself involve a breach of Article 8. In his approach to his task, the Inspector struck a balance which was entirely in accord with the requirements of Article 8 and the jurisprudence under it. There has been nothing arbitrary about the procedure followed and the striking of the balance provided that reasonable and appropriate measures were taken to secure the Appellants' rights in accordance with Article 8(1). The approach the Court should adopt was stated by Lord Bingham of Cornhill in Daly at paragraph 23:

"Domestic courts must themselves form a judgment as to whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment)…"

47. I find no breach of Article 8(1). Resort to Article 8(2) is not in my judgment necessary to uphold the decision, for the reasons I have given, but, if I am wrong about that, it provides, on the Inspector's findings, justification for the permitted development. I refer to the findings at paragraph 56 of the Inspector's decision together with an acknowledgement of the right of a landowner to make use of his land, as a factor to be considered.

48. Recognition must be given to the fact that Article 8 and Article 1 of the First Protocol are part of the law of England and Wales. That being so, Article 8 should in my view normally be considered as an integral part of the decision maker's approach to material considerations and not, as happened in this case, in effect as a footnote. The different approaches will often, as in my judgment in the present case, produce the same answer but if true integration is to be achieved, the provisions of the Convention should inform the decision maker's approach to the entire issue. There will be cases where the jurisprudence under Article 8, and the standards it sets, will be an important factor in considering the legality of a planning decision or process. Since the exercise conducted by the Inspector, and his conclusion, were comfortably within the margin of appreciation provided by Article 8 in circumstances such as the present, however, the decision is not invalidated by the process followed by the Inspector in reaching his conclusion. Moreover, any criticism by the Appellants of the Inspector on this ground would be ill-founded because he dealt with the Appellants' submissions in the order in which they had been made to him.

49. The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in Samaroo, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require, that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has "an excessive or disproportionate effect on the interests of affected persons" (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that "it is important to emphasise that the striking of a fair balance lies at the heart of proportionality".

50. I am entirely unpersuaded that the absence of the word "proportionality" in the decision letter renders the decision unsatisfactory or liable to be quashed. I acknowledge that the word proportionality is present in the post-Samaroo decisions and the judgments of Sullivan J in Egan and Elias J in Gosbee but I do not read the conclusion reached by either judge as depending on the presence of that word or on the existence of a new concept or approach in planning law. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessary in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in Samaroo does not have the effect of imposing on planning procedures the straight-jacket advocated by Mr Clayton. There was no flaw in the approach of the Inspector in the present case.

51. There remains the discrete question on the Inspector's finding "that matters of property valuation" do not amount to material planning considerations, and its bearing on Convention rights. I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent but, in his reply, Mr Clayton, as I understand it, sought to create diminution of value as a separate and distinct breach of Article 8 and Article 1 of First Protocol. Having regard to the background and purpose of each Article, I do not accept that submission. A loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions. Diminution of value in itself is not a loss contemplated by the Articles in this context.

52. I do not underestimate the importance to landowners of a loss of value caused by neighbouring developments but it does not in my view constitute a separate or independent basis for alleging a breach of the Convention rights involved. The weighing of interests should not be converted into an exercise in financial accounting to determine the loss to the respective landowners and to the community.

53. I would uphold the conclusion and reasoning of the judge and dismiss the appeal."

51. At paragraph 55 Keene LJ said this :

"I agree with Pill LJ that the process outlined in Samaroo, while appropriate where there is direct interference with Article 8 rights by a public body, cannot be applied without adaptation in a situation where the essential conflict is between two or more groups of private interests. In such a situation, a balancing exercise of the kind conducted in the present case by the inspector is sufficient to meet any requirement of proportionality."

52. It is clear from the passages above in the judgments of Pill and Keene LJJ that

(a) One cannot simply read the two stage test across into the planning context ;

(b) Provided that the decision maker carries out a proper balancing exercise, the test of proportionality is met.

53. Here the Secretary of State at paragraph 36 of the Decision Letter balanced the public interest (which lay in protecting the environment from the effects of the proposed development) against the interference with their home and family life which would result in the McCarthys and the other appellants having to use unauthorised sites or live by the roadside. He concluded that it was necessary in the public interest to refuse planning permission, and that that would not place a disproportionate burden on the Appellants. I can find no flaw in that reasoning, nor any failure to apply the precepts of the ECHR. It is precisely the kind of balancing exercise endorsed in Lough.
54. It follows from the above that each of the challenges to this Decision letter must fail.

Note 1    Judge’s note:- in fact he dealt with the general need for sites, and the availability of alternative sites, as sub-headings of the section dealing with personal circumstances- see paragraphs 32 and 34 of the Decision Letter.    [Back]