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
		4th May 2007

MR JUSTICE SULLIVAN:

Introduction

1. This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision by the first defendant dismissing the claimants' appeals under section 67 of the Act against the second defendant's decisions to refuse retrospective planning permission for the use of plots 2 to 7 Valley View, Old Barn Lane, Rettendon Common, in Chelmsford ("the site") for the stationing of gypsy caravans.
2. The first defendant had recovered jurisdiction to determine the appeals because the site is in the Green Belt. He appointed an Inspector to hold a public inquiry into the four appeals by the claimants. The inquiry was held on 9th to 11th August and 14th September 2005, and the Inspector's lengthy report to the first defendant is dated 31st October 2005. The Inspector concluded that it would not be appropriate to grant either temporary or permanent planning permission, and recommended that the four appeals should be dismissed. In a decision letter dated 29th December 2005 the first defendant agreed with the Inspector that neither permanent nor temporary planning permission was appropriate, and accepted the Inspector's recommendation to dismiss the appeals. The claimants do not challenge the first defendant's decision that permanent planning permission should not be granted. Their challenge is confined to the first defendant's decision not to grant temporary planning permission.

The decision letter

3. In order to understand the submissions made on behalf of the claimants it is necessary to set out the relevant extracts from the decision letter. In paragraph 2 the first defendant said:

"The Inspector, whose conclusions are reproduced in the Annex to this letter, recommended that the appeals be dismissed. A copy of her report is enclosed. For the reasons given below, the Secretary of State agrees with the Inspector's conclusions, except where stated, and accepts her recommendation that the appeals be dismissed. All paragraph references in this letter are to the Inspector's Report (IR) unless otherwise stated."

4. The decision letter dealt with procedural matters and policy issues in paragraphs 3 to 6. Under the heading "Main considerations" paragraph 7 of the decision letter said:

"The Secretary of State agrees with the Inspector that the main considerations in this case are:-

A) whether the developments are in accordance with the Development Plan;

B) Gypsy status;

C) the impact of the development on the Green Belt;

D) whether the other consideration in these appeals arising from the special needs of the appellants as gypsies and any other personal circumstances amount to very special circumstances that would clearly outweigh the harm by reason of inappropriateness and any other harm to the Green Belt in this location;

E) whether the noise environment of the plots is or could be made satisfactory for living accommodation; and

F) the sustainability of the sites."

The decision letter then dealt with each of these issues in turn. Nothing turns on paragraphs 8 to 10 which deal with the development plan. It is, however, necessary to set out the remainder of the first defendant's reasoning:

"Gypsy status

11. The Secretary of State accepts that the correct approach under current planning policy as set out in the Circular 1/94 is to consider Gypsy status in accordance with the statutory definition as interpreted by the Court of Appeal in Wrexham County Borough Council v The National Assembly of Wales (2003) ('Wrexham'). On this basis, for the reasons given in IR209 to 219, the Secretary of State agrees with the Inspector at IR220 that of all the appellants only Marie Larking, through her husband Leo, enjoys gypsy status under current planning policy.

12. However, the Secretary of State considers that, for the purpose of determining the issue of Gypsy status in relation to the 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.

13. Whilst the Secretary of State acknowledges that the Circular 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. For these reasons, the Secretary of State is satisfied that he should determine the appeals on the basis that all the appellants enjoy the status of Gypsies.

The impact on the Green Belt

14. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open. The Secretary of State agrees with the Inspector that the change of use of the site to a caravan site and the associated operational development has given it an urban appearance and negated its openness and that this would be further emphasised by the proposed dayroom buildings. He agrees with the Inspector that the development makes a substantial encroachment on the countryside, extends urban sprawl and contributes in a minor way to the coalescence of the major settlements of Chelmsford, Wickford, and South Woodham Ferrers. For these reasons, the Secretary of State agrees with the Inspector that the appeal development is harmful by definition and has a very harmful impact on three purposes of including the land within the Green Belt.

15. The Secretary of State agrees with the Inspector that the encroachment of the Valley View plots on the countryside has a very harmful site specific impact. For the reasons given in IR 247 and 248, he agrees with the Inspector that the existing caravans and other structures on the site have a wholly alien appearance in what is otherwise undeveloped and gently undulating open countryside. Furthermore, for the reasons given in IR 249, the Secretary of State agrees with the Inspector that the development has a severely adverse impact on the appearance of the countryside at Old Barn Lane. Overall, the Secretary of State agrees with the Inspector that the developments would detract very harmfully from the character and appearance of the area and that they cannot be screened in a manner in keening with their surroundings.

16. The Secretary of State attaches significant weight to the harm to the Green Belt and has therefore proceeded to consider whether there are any very special circumstances which would clearly outweigh this harm.

Very special circumstances

17. 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. 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.

Personal circumstances

18. The Secretary of State agrees with the Inspector, for the reasons given in IR 232-234, that the consequence of dismissing the appeals for all of the appellants and their families is likely to be that their day-to-day medical care would be more difficult to access, and he also agrees that continuity for hospital appointments would, in those circumstances, be more difficult to maintain. He finds that these matters weigh in favour of the appellants. However, the Secretary of State also agrees with the Inspector that, with the exception of these relating to Mr Dooley, none of the circumstances relating to the appellants' health is out of the ordinary, and agrees that as a consequence only moderate weight should be attached to them. The Secretary of State however recognises that, by contrast, Mr Dooley's condition could well be worsened by the uncertainty of having no permanent place to stay, and he attaches significant weight to this matter.

19. For the reasons given in IR 236 and 237, the Secretary of State agrees with the Inspector that the likely consequences of the dismissal of these appeals for the education of the children concerned would be that the children would be unlikely to remain at their present schools, and if on the roadside, would receive erratic or non-existent schooling. He also agrees with the Inspector that there is nothing out of the ordinary about those educational needs in the case of gypsies. However, the Secretary of State attaches significant weight to the benefit of continuous education and for this reason disagrees with the Inspector as to the weight to be attached to this matter.

20. As the Secretary of State is determining these appeals on the basis that the appellants enjoy the status of gypsies, he has gone on to consider the need for, and provision of, sites in the area. Accordingly, although the Inspector's consideration of the need for sites relates only to the needs of Mrs Larking, the Secretary of State has assessed the need for sites in relation to all of the Appellants and their families.

Need and alternative sites

21. For the reasons given in IR 228, the Secretary of State agrees with the Inspector that there is a substantial unmet need for gypsy sites in England and in Essex. He also agrees with the Inspector that in Chelmsford there remains a substantial need for sites despite the recent actions of the Council, and that the appellants have a personal need for a site.

22. However, he disagrees with the Inspector in IR 230 that these matters should not be counted as weighty considerations in favour of the appellants. Although he agrees with the Inspector that the appellants' personal need for a site is not required to be met locally, and notwithstanding that he agrees with the Inspector that the need for sites locally has reduced due to the Council's actions, the Secretary of State considers that substantial weight should be given to the appellants' need for a site and to the continuing need for sites locally and the lack of a quantitative assessment carried out by the Council.

23. The Secretary of State also agrees with the Inspector that there are no known alternatives sites available to the appellants, and that it would be unreasonable to expect them to occupy sites wholly or predominantly occupied by English gypsies or to occupy family sites, or to occupy houses, and has weighed those matters in the balance in favour of the appellants.

Overall balance of harm to the Green Belt and other considerations

24. For the reasons given above, the Secretary of State agrees with the Inspector that the harm to the Green Belt that would arise from the development is severe. However, he has also concluded that all the appellants should be considered to have gypsy status for the purpose of these appeals. He has therefore had regard to the special personal circumstances that apply to gypsies in considering whether there are any very special circumstances that could clearly outweigh the harm to the Green Belt .

25. The appellants are clearly in need of a site and there are a lack of alternatives available to them, although the Council are making significant strides to increase the number of authorised sites. The Secretary of State acknowledges that the appellants have benefited from stable access to medical attention and education since coming to Valley View. However, despite giving these circumstances weight or, in some cases, significant weight, the Secretary of State concludes, for the reasons set out above, that none of them, either on their own or collectively, amount to the very special circumstances which would clearly outweigh the severe harm he has concluded would be caused to the Green Belt.

Noise impacts

26. For the reasons given in IR 250-258, the Secretary of State agrees with the Inspector that the noise environment is one where permission should not normally be granted unless the impact can be mitigated. Furthermore, for the reasons given in IR 253 and 254, the Secretary of State agrees with the Inspector that the possibility of mitigation is not possible without further serious harm to the openness of the Green Belt and to the appearance of the countryside. He agrees with the Inspector that it would be inequitable, discriminatory and contrary to the principles of social inclusion to allow the appeals in an environment that would not be acceptable for those living in houses.

The sustainability of the site

27. For the reasons given in IR 259-260, the Secretary of State agrees with the Inspector that the site is inaccessible in practical terms other than by private vehicles and there is no clear justification in using this greenfield site. He agrees with the Inspector therefore that the development performs poorly as a sustainable location.

Other considerations

28. For the reasons given in IR 266, the Secretary of State agrees with the Inspector that the narrowness and poor surface condition of Old Barn Lane argues against materially increasing traffic here.

Temporary permission

29. The Secretary of State has considered whether temporary permission should be granted in the light of his policies in Circular 11/95 (The use of Conditions in Planning Permission). However, for the reasons given in IR 283-285, the Secretary of State agrees with the Inspector that the appeals development has caused substantial harm to the Green Belt, severe visual intrusion and the site provides an unduly noisy environment. He agrees that none of these adverse impacts can be overcome or significantly mitigated by imposition of conditions and that a temporary permission would allow those important interests to continue to be harmed for a prolonged period. The Secretary of State concludes therefore that there are no material factors which would justify granting a temporary permission in this case.

Human rights

30. The Secretary of State recognises that dismissal of the appeals would require the appellants 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. 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 harmful to the need to protect the Green Belt and open countryside, the Secretary of State agrees with the Inspector that the public interest can only be adequately safeguarded by dismissing all the appeals. He considers that dismissal of the appeals would be proportionate and necessary and would not result in a violation of the appellants' rights under Article 8 of the Convention.

Conclusion

31. The appeals development is inappropriate development in the Green Belt, has already caused substantial damage to the Green Belt and will continue to do so if allowed. In addition to this harm, the site is inaccessible in practical terms other than by private vehicles and therefore performs poorly as a sustainable location. The Secretary of State concludes therefore that very substantial harm would be caused if permission is granted. The Secretary of State has carefully considered the general need for the 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 amount to very special circumstances to clearly outweigh the extent of harm to the Green Belt that would be caused. In addition to this, he concludes that the noise environment is not acceptable and cannot be mitigated without causing further serious harm to the Green Belt and to the appearance of the countryside. He has considered the possibility of temporary permission, but has concluded that the proposals would cause serious harm to the Green Belt and that this is not justified even over a shorter period of time. He concludes therefore that the appeal developments would be contrary to the Development Plan. He is satisfied that there are no material considerations of such weight that indicate that he should determine the appeals other than in accordance with the Development Plan."

Paragraphs 283 to 285 of the Inspector's report (which are referred to in paragraph 29 of the decision letter) are in these terms, under the heading "Temporary permission":

"283. In the event that full permissions are unacceptable, the appellants seek a temporary permission in recognition that the Council has not compiled with the PPG3 and Circular 1/94 by conducting a systematic assessment of need for gypsy sites and of the evolving national policy context re provision for gypsy and traveller sites.

284. The project to make that assessment across Essex is imminently commencing and its results expected by mid 2006 with action on its results to be incorporated within Local Development Documents.

285. The appeals development has caused substantial harm to the Green Belt, severe visual intrusion and the site provides an unduly noisy environment. The effect of the development is already clear. None of these adverse impacts can be overcome or significantly mitigated by imposition of conditions. A temporary permission would allow those important interests to continue to be [harmful] for a prolonged period. The appeals also include permanent buildings in the form of the day rooms as well as the operational development of the hard surfacing. Circular 11/95 advises against temporary conditions in the above circumstances and the fact that the national policy context for gypsy sites is under review does not change those impacts. I consider that even for a temporary period of, say, three years that the serious ensuing harm to the environment and the economic wellbeing of the wider community would still justify the interference with the appellants Human Rights under Article 8(1). Such action in the wider public interest would in my view be proportionate and necessary in the public interest and hence would not result in a violation of the appellant's rights under Article 8 of the European Convention on Human Rights.

286. I find no justification for a temporary condition."

5. Pausing there, one would have thought that this was a decision letter where the reasons for dismissing the appeals and not granting either permanent or temporary planning permission could not be clearer. Since the site was already in use for the development for which planning permission was being retrospectively sought it was possible to assess its impact on the Green Belt. There is no challenge to the first defendant's conclusion that the development was not merely inappropriate development, it had a "very harmful impact" in the Green Belt (14); "very harmful site specific impact" in terms of encroachment into the countryside (15); had a "seriously adverse impact on the appearance of the countryside" and overall detracted "very harmfully" from the character and appearance of the area (15); in addition to these serious objections the noise environment was not acceptable (26); the site was not a sustainable location (27) and for good measure the access was inadequate for increased traffic (28). There is, as I say, no challenge to these reasons for refusing permanent planning permission. In these circumstances one would have thought that whatever weight was to be placed on the special circumstances advanced by the claimants, the reasons why the Secretary of State decided that it was not appropriate to grant any planning permission, whether temporary or permanent, were so obvious as to be beyond argument. This was not a case where the first defendant's decision to refuse permanent planning permission was a finely balanced one with powerful very special circumstances being just outweighed by some modest harm to the Green Belt. In such a case a condition limiting planning permission to a temporary period might tip the balance in favour of granting permission. This, on the face of the decision letter when read as a whole, was plainly not such a case. Despite the fact that the Secretary of State gave greater weight to the very special circumstances relied upon by the claimants they did not outweigh, in the first defendant's view, the severe harm done to important interests, including the Green Belt.

The claimants' submissions

6. Undaunted by the obvious, common-sense reasoning of the decision letter, Mr Willers submitted on behalf of the claimants that it was to be inferred from the use of the word "therefore" in the final sentence of paragraph 29 in the decision letter, that the first defendant, when deciding whether or not temporary planning permission should be granted, had simply had regard to the factors mentioned in paragraph 29: the substantial harm to the Green Belt, the severe visual intrusion and the fact that the site provided on unduly noisy environment; ie the first defendant had regard to the adverse factors and had failed to consider the positive factors in favour of granting planning permission, namely the very special circumstances referred to earlier in the decision letter.

Conclusions

7. While the submission is attractively put as always, it is well-established that decision letters of this kind must be read as a whole in a common-sense way. Once that is done it can be seen that this criticism of the decision letter is entirely devoid of merit. It relies on an approach to interpretation which focuses not merely upon one paragraph or one sentence in a lengthy and careful letter, but upon one word, the word "therefore", in one sentence of the decision letter, and which then wrenches the paragraph containing that word wholly out of the surrounding context. In effect, the claimants invite the reader of the decision letter to conclude that the decision taker, having very carefully set out a number of factors in the paragraphs preceding paragraph 29, explaining where the first defendant agreed with the Inspector and where the first defendant disagreed with the Inspector's conclusions, then suffered a fit of amnesia and entirely forgot about all of those earlier conclusions (and thus failed to take them into account) when reaching the conclusion in paragraph 29 that temporary planning permission should not be granted. Such an approach to the interpretation of a decision letter defies common sense.
8. The same point was put somewhat differently in the original grounds of challenge. It was said that while the first defendant had, when deciding whether or not to grant permanent planning permission, determined the appeals on the basis that all of the appellants had gypsy status and had given greater weight to both the unmet need for gypsy sites in England and Esses and to the appellant's personal need for a site (see for example paragraphs 13 and 21 of the decision letter), when he came to decide whether or not temporary planning permission should be granted he had failed to give those factors greater weight and simply agreed with the Inspector's original assessment (which was on the basis that only one of the appellants was a gypsy and that only moderate or slight weight should be given to the appellant's personal circumstances). This submission is open to the same objection. It defies common sense to suggest that for some undisclosed reason the first defendant adopted a different approach to the weight to be given to the very special circumstances relied upon by the claimants when deciding whether to grant temporary planning permission. Nor is such an interpretation of the decision letter justified by the language used in the letter.
9. I accept Mr Warren's submission on behalf of the first defendant that paragraph 29 of the decision letter makes it plain what aspects of the Inspector's assessment the first defendant was agreeing with. The first defendant agreed with the Inspector's assessment of the harm to the Green Belt, the extent of visual intrusion and the unsuitable noise environment. It was unnecessary for the first defendant to rehearse the other issues on some of which he had disagreed with the Inspector because they were clearly set out in the earlier parts of the decision letter.
10. For the same reasons there is no force in ground 2 of the challenge that the first defendant's reasons for refusing to grant temporary planning permission were either inadequate or unintelligible. Reading the decision letter as a whole, it is plain that the first defendant concluded that the harm done by the current use of the site was so great that no planning permission, whether temporary or permanent, was justified, notwithstanding the circumstances put forward by the claimants, including the general need for sites and their personal need for a site, the health and educational needs of the appellants and their children, et cetera.
11. Mr Willers confirmed that no separate Article 8 challenge was being advanced. He submitted that it was important in the light of Article 8 that the issue of temporary planning permission should be carefully considered in gypsy caravan site appeals (see for example the Queen on the application of William Lee v First Secretary of State [2003] EWHC 3235 (Admin), per Harrison J at paragraphs 23 to 27. For the reasons set out above, the issue of temporary planning permission was properly addressed in this decision letter and the submission that in so doing the first defendant failed to have regard to the other conclusions that he had reached in the decision letter and/or gave inadequate reasons is not well-founded for the reasons already set out.
12. It follows that this application must be dismissed.
13. MR WARREN: My Lord, I would ask the court to make an order to that effect. I also apply for costs on behalf of the first defendant in relation to the claim. The claimants are all, as I understand it, legally assisted and so the form of the order would be the usual one in this type of case, not to be enforced without either the permission or the leave of the court.
14. MR JUSTICE SULLIVAN: What do you want to say about that, Mr Willers?
15. MR WILLERS: My Lord, I cannot object to or oppose that application, as long as it is made in the usual format.
16. MR JUSTICE SULLIVAN: The application is dismissed. The claimants are to pay the first defendant's costs but that order is not to be enforced without the leave of the court.
17. MR WARREN: Thank, my Lord.
18. MR WILLERS: My Lord, can I ask for detailed assessment of the claimants' publicly-funded costs?
19. MR JUSTICE SULLIVAN: You certainly may; you may have that. Thank you. Is there anything else?
20. MR WILLERS: No thank you, my Lord.