England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 September 2007

Mr Justice Keith:

Introduction

1. Archie and Julie Brown are gypsies. In 2004 they bought a plot of land near the village of Willingham in Cambridgeshire. They have been living there with their children ever since. When the local planning authority, South Cambridgeshire District Council ("the Council"), issued enforcement and stop notices in respect of their use of the land, they applied for the appropriate planning permission. That application was not determined by the Council, and Mr and Mrs Brown appealed against that failure. An inspector appointed by the First Secretary of State (whose responsibilities have now been taken over by the Secretary of State for Communities and Local Government) allowed the appeal and granted Mr and Mrs Brown planning permission subject to various conditions. The Council now questions the validity of that decision by an application under section 288(1) of the Town and Country Planning Act 1990 ("the 1990 Act").

The facts

2. The relevant facts appear from the decision of the inspector of 12 April 2006 setting out her reasons, and for the most part the following summary comes from that letter. Mr and Mrs Brown come from Cambridgeshire. Both their families were gypsies. They led a travelling lifestyle until the birth of their daughter, Kelly Marie, in 1996 in Hitchingbrooke Hospital, Huntingdon. She was their third child, Mr and Mrs Brown having had two daughters previously. Kelly Marie was born with an acute and life-threatening condition and was not expected to live more than a few weeks. She required regular medical help and special care, both on an emergency and a continuing basis, and the itinerant occupation of unauthorised sites, which had been the family's lifestyle up to then, was no longer tenable. As a result, Mr Brown bought a plot on a tract of land at Smithy Fen, which was just outside the village of Cottenham, some five miles north of Cambridge. This tract of land had planning permission for gypsy use. Mr and Mrs Brown's plot was in poor condition, but they undertook considerable improvements to it over the years, and they lived there without incident in a double unit mobile home with a bathroom and washing facilities and a living area large enough for the whole family. They went on to have two other children, another girl and a boy.
3. The two elder daughters went to a primary school in Cottenham, and the family was registered at a surgery in the village. Mr Brown was a landscape gardener, and he would spend much of the week away from home, leaving Mrs Brown to look after the children. Kelly Marie's needs were very significant. She used a wheelchair, and the family's mobile home had an entrance with a ramp which was wide enough for it. She was unable to walk unaided, and required help with her personal care. She needed access to special equipment, as well as a reliable and consistent supply of water and power, and Mrs Brown was assisted in her care of Kelly Marie by the support of a network of local agencies, including the paediatricians at Hitchingbrooke Hospital who had known her since birth. Emergency visits there were not uncommon since the frequency of Kelly Marie's epileptic fits were such as to endanger her ability to breathe. When, against the odds, Kelly Marie reached school age in 2000, she was offered a place at a school in Ely for children with special educational needs, and which catered for her profound physical disabilities. The local education authority provided transport to and from school for Kelly Marie in her purpose-designed wheelchair.
4. In 2001 and 2002, non-indigenous gypsies began to move onto the site at Smithy Fen. Over the course of the next year or two, they took over the plots of land which had been authorised for use by gypsies, as well as plots of land which had not been. Violence and abuse were rife, and the previous occupants of the site began to leave. The disturbances on the site had a particularly serious impact on the Brown family. For example, the ambulance service was unwilling to respond to emergency calls for assistance without the police accompanying them, and the consequential delay in their response could have proved fatal in Kelly Marie's case.
5. By 2004, the Brown family were the only pre-existing gypsy family remaining on the site at Smithy Fen. They had not been able to move before then because they had not found a suitable plot which they could afford to buy or rent. They had limited their search for an alternative plot to an area which was within a reasonable distance of Huntingdon (where Hitchingbrooke Hospital was), Ely (where Kelly Marie's school was) and Cottenham (where the surgery at which they were registered was). The need to maintain continuity of care with the individuals who had looked after Kelly Marie was regarded by Mr and Mrs Brown as of fundamental importance, and that view was shared by the health professionals. Mr and Mrs Brown's inability to find an alternative plot was "the principal, if not [the] sole, reason" for the family remaining at Smithy Fen in what the inspector described as "intolerable conditions" after all their former neighbours had left. A return to a life on the road would have left Kelly Marie extremely vulnerable, and would have resulted in access to the medical attention she needed far more difficult to obtain.
6. The inspector accepted that Mr and Mrs Brown and their family needed to maintain their gypsy lifestyle: they had never lived in a house, and moving to one had not been an appropriate option for them. She acknowledged that there may have been other plots in the vicinity of Huntingdon, Ely or Cambridge which were suitable for use by gypsies, but she found that the land outside Willingham which the family eventually moved to in 2004 was the first available site which had come to Mr and Mrs Brown's attention which (a) was suitable for their particular needs and (b) they could afford to buy. The plot which they moved to was one which they had seen advertised. Although it did not have planning permission for gypsy use, they decided to buy it because the value of land on the site at Smithy Fen was falling, and they were concerned that if they stayed for much longer they would be unable to sell it at all. In the event, they sold their existing plot in four separate parcels for £20,000.00, and bought the land outside Willingham for a similar amount.
7. The land they bought was part of a field. It is on the north side of Schole Road, which runs in an easterly direction from the village of Willingham. The south side of the field, which runs along the side of Schole Road, is about 160 metres long, but the part of the field which Mr and Mrs Brown bought runs along the road for only about 23 metres, and is about 33 metres deep. The only access for vehicles into Schole Road is from the village, and that means that all traffic enters and leaves Schole Road from that end. There are a couple of other sites along Schole Road occupied by gypsies, but Mr and Mrs Brown's land is the last occupied plot in Schole Road, and the nearest house is about 150 metres away. The field itself is about 250 metres from where the village ends. Mr and Mrs Brown's land is in the south-west corner of the field alongside Schole Road. The field is surrounded by open fields on three sides. The site had all the locational attributes which Mr and Mrs Brown were looking for. It was roughly equidistant from Huntingdon and Ely, and was relatively close to Cottenham, because Willingham was only about three miles from it.
8. The site was in a far less satisfactory condition than the plot on the site at Smithy Fen. It had no sewage facilities, and a considerable amount of debris had been dumped on it. That had to be cleared, and a hard surface had to be laid. Moreover, the site was unsuitable for the Browns' existing mobile home. That had to be sold, and Mr and Mrs Brown bought two touring caravans which they put onto the land along with a mobile shower and toilet unit. However, the caravans' doors were not wide enough to allow for Kelly Marie's wheelchair. It had to be kept in a shed on the site while she was not at school, and that meant that she had to be lifted in and out of the caravans. Moreover, she had no access to supported seating, which has led since the move to Schole Road to Kelly Marie developing a curvature of the spine and needing a body brace and callipers. She will have to wear the body brace for at least another four years, and there is now the possibility of her having to undergo major surgery. Kelly Marie has to be washed and changed on the floor of the living room of the larger caravan as the mobile utility unit is limited in space. Since moving to the site, the two youngest children have been enrolled at a primary school in Willingham, and the elder two are being taught at home.

The enforcement and stop notices

9. The inspector did not make any finding about when in 2004 Mr and Mrs Brown first moved onto the site in Schole Road, but on 10 November 2004 the Council issued an enforcement notice in respect of the site. The notice alleged that the site was being used as a caravan site for residential purposes without planning permission, and that unauthorised preparation of the site to provide drains and access to the site, as well as the laying of hardcore, was taking place. The notice was to take effect on 29 December 2004 unless an appeal against the notice was lodged before then, and Mr and Mrs Brown had to comply with the notice by 29 January 2005. In addition, the Council issued a stop notice on 11 November 2004, prohibiting Mr and Mrs Brown from using the land as a residential caravan site. That notice took effect on 17 November 2004.
10. Mr and Mrs Brown lodged an appeal against the enforcement notice on the ground that planning permission should be granted in respect of the breach of planning control to which the enforcement notice had related. Although the inspector who considered that appeal visited the site on 10 May 2005, the appeal was dealt with by way of written representations. The Council had questioned whether Mr and Mrs Brown could be regarded as gypsies for the purposes of planning policy in view of their settled lifestyle between 1996 and 2004, but the inspector in his decision dated 22 June 2005 concluded that Mr and Mrs Brown should be treated as gypsies for the purpose of the appeal, and by the time their current application for planning permission was considered by the later inspector, the Council had accepted the family's gypsy status. However, the inspector concluded that the development would conflict with most of the criteria for the provision of caravan sites for gypsies outside the Green Belt which the local plan required compliance with. His view was that there was little evidence that continued occupation of the site was necessary to meet Kelly Marie's needs, since access to her school and Hitchingbrooke Hospital could be obtained "from more convenient locations". His overall conclusion was that Kelly Marie's special needs did not justify an exception to the policy adopted in the local plan. He therefore dismissed the appeal, and refused to grant planning permission on the application which was deemed as having been made.

The current application for planning permission

11. In fact, an application for planning permission had previously been lodged. Although the application was dated 9 November 2004 – i.e. pre-dating the issue of the enforcement notice – it was not registered by the Council until 10 December 2004, which was about the time when the appeal from the enforcement notice had been lodged. The development for which planning permission was sought involved the erection of a brick and tile utility block – which would provide a bathroom, toilet and an area for washing and drying clothes, and would be plumbed into a septic tank – to be internally linked to a mobile home which would provide (a) sleeping accommodation for Mr and Mrs Brown and Kelly Marie and (b) a living area for the family. Two towing caravans would also be stationed on the site to provide sleeping accommodation for the other four children. Wider vehicle access to and from Schole Road would also be necessary. The application was for temporary planning permission for two years so that the impact of the development could be assessed.
12. The Council never came to a decision on this application for planning permission. Presumably, it was waiting for the outcome of the appeal against the enforcement notice, and by the time the deemed application for planning permission had been refused it was too late to consider the original application. Accordingly, the application was considered by a different inspector following an inquiry which took place on 7 and 8 February and 10 March 2006. Given that 15 months or so had passed since the application had first been made, planning permission was now being sought on a permanent basis, with permission for a limited period only to be considered if permanent planning permission was found to be unacceptable.
13. By her decision of 12 April 2006, the inspector allowed the appeal against the Council's failure to determine the original application, and granted planning permission for the development subject to a number of conditions. The most important one acknowledged the fact that from the start Mr and Mrs Brown had sought planning permission on a personal basis, and planning permission was granted on condition that only they and their dependants who lived with them could reside on the site. In addition, the inspector imposed various conditions which were intended to reduce the visual impact of the development on the neighbourhood, to prohibit the commercial use of the site, and to minimise the wear and tear to Schole Road and the visual and noise impact of vehicles going to and from the site. It is the decision of the inspector of 12 April 2006 which the Council seeks to have set aside on this application. The challenge is not to the conditions which the inspector imposed on the grant of planning permission, but to the grant of planning permission itself.

The inspector's reasoning

14. In her decision, the inspector summarised the relevant planning policies affecting the appeal. She identified the relevant provisions of the development plan, which comprised (a) the Cambridge and Peterborough Structure Plan 2003 ("the Structure Plan") and (b) the South Cambridgeshire Local Plan which had been adopted by the Council in 2004 ("the Local Plan"). She noted that Policy P5/4 in the Structure Plan required local plans to make provision to meet the locally assessed housing needs for specific groups including travellers and gypsies, and she considered the impact of Policy HG23 in the Local Plan – as had the inspector who had dismissed the appeal against the enforcement notice – which set out nine criteria to be met for the provision of caravan sites for gypsies outside the Green Belt.
15. The inspector who dismissed the appeal against the enforcement notice had concluded that the proposed development would conflict with (a) Policy P1/2 in the Structure Plan (which restricted development in the countryside unless it could be demonstrated to be essential in the particular rural location) and (b) Policy SE8 in the Local Plan (which prohibited residential development outside village frameworks). However, at the inquiry the Council accepted that neither of these policies related to the present case, and the debate related for the most part to whether the development would meet the criteria set out in Policy HG23. Like the previous inspector, the inspector in the present case concluded that they would not. She agreed with the previous inspector that the site would have a significant adverse effect on the rural character and appearance of the surrounding area, and that the site could not satisfactorily be assimilated into its surroundings by landscaping. It would take many years for a suitable hedge around the site to grow so as to provide an effective screen. Unlike the previous inspector, she did not think that the development would lead to a concentration of caravan sites in this part of Schole Road, but – again unlike the previous inspector who did not refer in his decision to Policy 7/4 in the Structure Plan and Policy EN1 in the Local Plan – she thought that the development conflicted with both those policies, at least in the short to medium term, in terms of its impact on the character and appearance of the area.
16. Having reached those conclusions, the inspector then considered, in the light of section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), whether there were other material considerations which should be taken into account. She treated two considerations as particularly material. First, she acknowledged that by July 2005 South Cambridgeshire had the highest number of caravans on both authorised and unauthorised sites of any local authority in the East of England. But despite the Council's best endeavours, there remained what the inspector described as "an unmet need" for sites with planning permission for gypsy use. The demand for such sites compared unfavourably with what the inspector called the "limited immediate availability for suitable land". She regarded that as a material consideration in assessing (a) any proposal for a development which failed to meet the requirements of Policy HG23 and (b) the realistic alternative accommodation options for gypsies looking for such land.
17. Secondly, the inspector regarded the personal circumstances of Mr and Mrs Brown and their family as exceptional, even amongst the gypsy community. She referred to "the intolerable situation they found themselves in at Smithy Fen and the acute needs and strains on the family arising out of Kelly Marie's difficulties". She noted that despite Mrs Brown's "outstanding dedication to the family's needs" the uncertainty arising from their current situation had taken its toll on her, and she was on medication for stress-related symptoms. The inspector treated the personal circumstances of the family as a material consideration, to which "considerable" weight had to be given.
18. In these circumstances, the question which the inspector then proceeded to decide was whether these considerations outweighed the provisions of the development plan and the harm which would be caused to the character and appearance of the area if the development was permitted to proceed. The inspector concluded that the family's local ties and the complex network of support for Kelly Marie made a strong case for the family to be on a site in the triangle formed by Huntingdon, Cambridge and Ely. Willingham lay close to the centre of that triangle. The inspector doubted whether a move further from Ely – even a move to a site outside Cambridgeshire – would result in Kelly Marie having to leave her school, but a move away from Cottenham was likely to endanger the close relationship which had been built up with the health professionals at the surgery there, and a move further from Huntingdon would make it less easy for Kelly Marie to be looked after by those at Hitchingbrooke Hospital with specialist knowledge of her condition.
19. The inspector noted a number of further problems. First, Kelly Marie required a bathroom, ramp and room for her motorised wheelchair. Without planning permission, Mr and Mrs Brown were unwilling to invest in the purchase of a mobile home and a purpose-built utility unit. Secondly, their limited funds severely restricted their alternative options. Mr and Mrs Brown had put all their savings into purchasing and making good the land in Schole Road, as well as the caravans they were living in. In addition, the enforcement notice would have reduced the resale value of the land. This was not a case, so the inspector found, of a site having been purchased on an opportunistic basis without much thought being given to what would happen if the Brown family were forced to leave it. Rather it was a case of the first affordable piece of land in the area which Mr and Mrs Brown thought was suitable. The inspector expressed the opinion that it was bought "as much as anything, out of desperation for somewhere to move to".
20. Finally, the inspector considered what the future held for Mr and Mrs Brown if planning permission was not granted. There was nothing to suggest that a suitable and affordable site would become available within the foreseeable future. In those circumstances, the family would have little option but to return to a life on the road if they wanted to remain close to Huntingdon, Ely and Cottenham, and if the Council decided to enforce the requirements of the enforcement notice. The inspector thought that that was unlikely – despite the issue of the stop notice – in view of the personal commitment which a local Councillor had given that the family would not be moved off the site without being given the maximum amount of time and help to find an alternative site. But the inspector concluded that allowing them to stay on that basis, though a significant humanitarian gesture, would add to the length of time the family had to live without the facilities they needed, and with the stress of uncertainty over their future. All these factors, in her judgment, weighed in favour of the grant of planning permission for as long as the land continued to be occupied by Mr and Mrs Brown and those of their dependants who lived with them.
21. The inspector was alive to the fact that in this respect she was differing from the considered view of the inspector who had dismissed the appeal against the enforcement notice. However, the evidence which she had received – over a number of days – was far more detailed and ranged considerably more widely than the written evidence which had been available to the previous inspector. In consequence, she had a better appreciation of the family's needs in terms of location and type of site, as well as the alternative accommodation options such as they were. She fully understood why her predecessor had reached the conclusion which he had on the material before him, but the evidence before her provided a far greater understanding of the relevant issues.

The grounds of the application

22. The inspector's reasons were expressed in considerable detail and with great cogency. But the Council contends that in three broad respects the inspector fell into error. She is said to have failed to comply with the procedural requirements of fairness, her findings in connection with the Browns' search for alternative sites are said to be flawed, and she is said to have failed to give reasons for departing from relevant findings in another inquiry. I propose to deal with each of these in turn.

The procedural failings

23. (i) The inspector's reliance on her own knowledge. In finding that the land in Schole Road was the first suitable, available and affordable site which had come to Mr and Mrs Brown's attention, the inspector had also found their search for such a site had been going on since 2002 but to no avail. That finding was, at least in part, based on Mr and Mrs Brown's own evidence. The inspector said that in Mrs Brown's oral evidence she had said that Mr Brown had been looking for an alternative site since 2002, and although Mr Brown did not give oral evidence, he had said in his witness statement that he had made extensive enquiries in 2004 in and around Cambridge, Huntingdon and Ely for a site to which they could move, but those enquiries had come to nothing. However, when referring to their search for an alternative site to move to, the inspector added:

"My own experiences at gypsy inquiries in East Cambridgeshire (May 2004) and Huntingdonshire (January 2006) would support the position that in E. Cambs all three local Council-owned gypsy sites were full and that vacancies rarely arose and that the only public site in Huntingdonshire, at St Neots, had been full for many years."

24. The Council contends that the inspector should not have relied on her own knowledge of the availability of Council-owned sites in East Cambridgeshire and Huntingdonshire without informing the Council of the state of her knowledge so that the Council could call such evidence as it wished to show that there had been sites – whether public sites or private ones – in East Cambridgeshire and Huntingdonshire which would have been available for the Brown family. By not letting the Council know before handing down her decision of the reliance she proposed to place on her own local knowledge, she was (a) depriving the Council of the opportunity to get information from the local planning authorities for East Cambridgeshire and Huntingdonshire about the availability of sites for gypsies in 2002, 2003 and 2004, and (b) giving undue weight to Mr Brown's evidence on the topic which had not been tested.
25. I cannot accept the premise on which this argument is based. The inspector claims that on the last day of the hearing she said that she "had experience of the lack of sites on the land owned by the two adjoining local authorities (East Cambridgeshire District Council & Huntingdonshire District Council)", though she did not mention how she had acquired that experience. The planning consultant advising Mr and Mrs Brown, Stuart Harrison, recalled the inspector saying much the same thing, adding that she had said that her experience was based on information acquired during appeals which she had heard. The only evidence to the contrary is that of the principal planning officer with the Council responsible for appeals and special projects, John Koch. It is true that Mr Harrison thought that the inspector had made her comment on the first day of the hearing while he was giving his evidence, but the likelihood is that the inspector said something on the lines she claims. It is easier to imagine Mr Koch not recalling some months later what the inspector had said, than the inspector and Mr Harrison apparently remembering something which never happened.
26. In any event, when conflicts of this kind occur, the court has little option but to accept the evidence which contradicted that of the party seeking to have the inspector's order quashed. After all, that is what happens when a decision of a magistrates' court is the subject of a challenge by judicial review, and an issue arises to what was said in the course of the hearing: see R v Reigate Justices ex p. Curl [1991] COD 66. As in that case, it would not have been appropriate to direct that the inspector, Mr Harrison and Mr Koch should make themselves available for cross-examination – even if the Council had suggested that, which it did not. Apart from anything else, as was said in Reigate Justices, cross-examination would have been unlikely to take the matter further, except to illustrate the differences in recollection even more vividly.
27. But even if, as Mr Koch claims, the inspector had not referred to her experience in the course of the hearing, I cannot go along with the criticism of the inspector. The context in which her comment in the decision about her experience was made, and the language she used, shows that she was not using her experience to decide whether Mr Brown had conducted an extensive search for suitable sites. She was simply recording that Mr Brown's evidence about the unavailability of such sites – which she said she had no reason to doubt – was consistent with her own experience.
28. But there is another point as well. At first blush, this criticism of the inspector amounts to a challenge to the validity of her order, not on the basis that her order was not within her powers, but on the basis that the requirements of procedural fairness had not been complied with: compare section 288(1)(a)(i) of the 1990 Act with section 288(1)(a)(ii). If that is right, her order may only be quashed, in the light of section 288(5)(b) of the 1990 Act, if the interests of the Council "have been substantially prejudiced by the failure to comply with" the requirements of procedural fairness. However, a decision which ought to be quashed because of non-compliance with the requirements of procedural fairness is itself a decision which is not within the decision-maker's powers. The question therefore arises whether substantial prejudice has to be shown if the decision is to be quashed because the decision is outside the powers of the decision-maker only because of non-compliance with the requirements of procedural fairness. The authorities show that the answer to that question is yes. That is what Mr David Widdicombe QC held in Reading Borough Council v Secretary of State for the Environment [1986] JPL 115, a case on the statutory predecessor of section 288. In reaching that conclusion, he followed the reasoning of the Court of Appeal in George v Secretary of State for the Environment (1979) 38 P & CR 609 on an analogous statutory provision (para. 3(1) of schedule 1 to the Acquisition of Land (Authorisation Procedure) Act 1946). In my judgment, that makes perfect sense, based as it is on the principle that the rules of natural justice, as the requirements of procedural fairness used to be called, are not concerned with the observance of technicalities, but with matters of substance. If a breach of the rules of natural justice does not in fact have any adverse impact, the breach is a technical one and does not justify the quashing of the decision affected by it.
29. Ms Saira Kabir Sheikh for the Council (who also represented the Council at the inquiry) argued that the Council was substantially prejudiced by the inspector's failure to inform the parties of her experience because the Council was left in the dark about the need for it to look for evidence to rebut what the inspector believed the position had been. In my judgment, this argument misses the point for two reasons. First, the Council knew that the availability of sites in 2004 in East Cambridgeshire and Huntingdonshire was going to be an issue in the case because of what Mr Brown had said in his witness statement. The Council did not need to be told about the inspector's own experience to know that if there was evidence that sites which were suitable for the needs of the Brown family and were affordable had been available in East Cambridgeshire and Huntingdonshire, that evidence would have had to be called. But more fundamentally, the Council would not have been prejudiced by the inspector's failure to inform the parties of her experience if the inspector's belief about the non-availability of such sites was correct. In those circumstances, there would have been nothing for the Council to rebut. As it is, the Council has not filed any evidence for the purpose of this application to show that, contrary to the inspector's belief, there were sites available for gypsy use in East Cambridgeshire and Huntingdonshire which Mr Brown would have found had his search been as extensive as he and Mrs Brown claimed.
30. (ii) Mrs Brown's comments at the site visit. The inspector visited the site on 9 February 2006, i.e. immediately after the first two days of the hearing. She was accompanied by Mrs Brown, Mr Harrison and Mr Koch. At the beginning of the visit, the inspector explained that the purpose of the visit was to enable her to see the site for herself. She said that those who were present could point things out to her, but they would not be allowed to do anything more than that, i.e. they could not give further evidence or comment on the evidence which had been given. When Mrs Brown appeared to the inspector to be uncertain about what she could or could not say, the inspector told her that she would stop her if she went beyond what was permitted.
31. Despite that warning, there were occasions during the site visit when Mrs Brown talked about her personal circumstances. It was necessary for the inspector to intervene on several occasions and tell Mrs Brown to stop. When she was asked to stop, she was very apologetic and did so. There were a couple of other occasions when Mr Koch asked the inspector to intervene. He was under the impression that the inspector was not going to intervene herself on those occasions, and the Council has therefore contended that on those occasions the inspector had "allowed" Mrs Brown to give "further evidence". That contention is not justified as the inspector has said that on each of those occasions she was just about to intervene herself when Mr Koch had asked her to do so. Mr Koch doubted that, but he was hardly in a position to know what she was intending to do. The Council's real point is that in reaching her conclusions about the personal circumstances of the Brown family – which obviously played a critical part in the eventual outcome of the appeal – the possibility that the inspector may have been influenced by the "evidence" given at the site by Mrs Brown cannot be excluded.
32. I cannot go along with this argument at all. It may be that Mrs Brown was so anxious to ensure that the inspector had taken her previous evidence on board that she felt the need to repeat what she had said – in which case she was really doing no more that highlighting what seemed to her to be the more significant parts of her earlier evidence. But if she was telling the inspector things which she had not mentioned before, the Council has never identified what the further "evidence" was. Without knowing what Mrs Brown was able to say before the inspector intervened – whether on the two occasions when the inspector intervened following Mr Koch's objections or on the other occasions when she intervened herself – it is quite impossible to assess whether the further "evidence" was capable of having had any impact at all on the inspector's conclusions about the family's personal circumstances.
33. But in any event, when the inquiry resumed on 10 March, and Ms Sheikh expressed the Council's concerns about the inspector having "allowed the giving of new evidence at the site visit", the inspector offered the Council the opportunity to question Mrs Brown about what she had said and to recall Mr Koch to rebut what she had said. That invitation was not taken up. Mr Koch says that he has no recollection of the Council being given that opportunity, but he claims that such an invitation would not have been taken up because he could not trust himself to remember exactly what Mrs Brown had said, and he would not therefore have been able to give Ms Sheikh sufficient instructions to enable her to question himself and Mrs Brown effectively. He says that this was made clear to the inspector. That comment does not lie easily with his claim to have no recollection of the inspector affording the Council the opportunity to question Mrs Brown further or to recall him. As it is, if there was anything of significance which Mrs Brown had told the inspector at the site visit which had not been in her evidence earlier, no doubt Mr Koch would have recalled that at least, and been able to tell Ms Sheikh about it. In my view, the possibility that the inspector may have been influenced by "evidence" which the Council had not had the opportunity to rebut can safely be discounted.

The search for alternative sites

34. (i) The burden of proof. In para. 74 of her decision, the inspector said:

"In seeking to determine the availability of alternative sites for residential gypsy use, there is no requirement in planning policy, or case law, for an applicant to prove that no other sites are available or that particular needs could not be met from another site. Indeed such a level of proof would be practically impossible. The case of Simmons, relied upon by the Council, establishes no such requirement, even in the Green Belt. The lack of evidence of a search, and the clear availability of alternative sites in more suitable locations elsewhere, can undoubtedly weigh against the applicant where there are policy or other objections to a proposed development. Equally, evidence of a search by an applicant over a reasonable area for a reasonable length of time and the absence of any obvious alternatives weigh in favour of him. But there is no absolute requirement for an applicant to prove he has explored and exhausted all possible alternative options before planning permission can be granted; or for a local authority to identify an alternative site before being able to refuse planning permission for another and adequately justify their decision at appeal. These are just material considerations to be weighed in the overall balance."

This analysis is said by the Council to be flawed as being counter to the "established approach" when the development of a site has been found to be harmful in planning terms – for example, because of the adverse impact it would have on the character and appearance of the countryside. In such a case, the burden was on the persons seeking planning permission to show that they had done all which could reasonably have been expected of them to find a suitable site which catered for their needs but that no such site was available. In the claim form, it was contended that this approach could be seen from the decision of the Secretary of State following an inquiry when appeals were lodged against the refusal of planning permission for parts of the site at Smithy Fen which had not hitherto been allocated for gypsy use to be authorised for such use ("the Smithy Fen Inquiry").

35. However, when Ms Sheikh developed the argument orally, her real point was that the approach for which she was contending was mandated by law and principle rather than by practice or policy. As a matter of principle, developers should be required to justify why they should be allowed to develop a site which had been found to be unsuitable for development. As a matter of authority, she relied on three cases – Rhodes v Minister of Housing and Local Government [1963] 1 All ER 300, Trusthouse Forte Ltd v Secretary of State for the Environment (1986) 53 P & CR 293 and First Secretary of State v Simmons [2005] EWCA 1295 (Civ).
36. I do not think that any of these cases supports the contention being advanced. In Rhodes, the question arose as to whether the minister on a planning application for use of land as an airport had to consider whether an alternative site for the airport was available. Paull J concluded at p. 302F-G that it was not for the minister to "rout round" for an alternative site, though if it had been "shown" at the inquiry that there was an alternative suitable site, that was a material consideration which the inspector had to take into account. The judge was doing no more than stating what would be a material consideration for the minister to consider if the existence of an alternative suitable site emerged at the hearing. He cannot be taken to have purported to have laid down how the existence of such a site should be established.
37. In Trusthouse Forte, an application for planning permission to build a hotel within the Green Belt was refused on the basis that the severe shortage of hotel accommodation in the area could be met at an alternative site, though no such sites were identified. Simon Brown J (as he then was) concluded that while it was generally desirable that a planning authority should identify the possibility of meeting any supposed need by reference to specific identifiable alternative sites, it would not always be essential or appropriate to do so. At p. 301, he said:

"The extent to which it will be for the developer to establish the need for his proposed development on the application or appeal site rather than for an objector to establish that such need can and should be met elsewhere will vary. However, in cases such as this, when the green belt planning policy expressly provides that 'the need for a motel on the site proposed, not merely in the area generally, has to be established in each case' the burden lies squarely upon the developer. Thus in this type of case it will be the more likely that the planning authority could reasonably conclude that the need could be met elsewhere without reference to some identified more appropriate alternative site."

Thus, far from saying that it is always for the developer to justify why he should be allowed to develop the site, Simon Brown J was saying that it all depends on the circumstances. In the present case, there was nothing in the development plan akin to the provision in the Green Belt planning policy which Simon Brown J regarded as decisive.

38. The third case, Simmons, is the one which the inspector referred to in para. 74 of her decision. It is closer to the present case since it concerned the refusal of planning permission for a private gypsy caravan site. However, on analysis, it adds nothing to the argument, because like Trusthouse Forte it was a case about development within the Green Belt (indeed within a Special Landscape Area as well). The burden of proof was therefore governed, as it was in Trusthouse Forte, by the Green Belt planning policy, which by then provided that it was for the applicant for planning permission to "show why permission should be granted", and that involved showing "very special circumstances" justifying the grant of planning permission.
39. The fact of the matter is that section 38(6) of the 2004 Act required the inspector to conduct a balancing exercise. That involved first determining whether there were material considerations which might suggest that the development should be allowed even though it conflicted with the provisions of the development plan. If the evidence revealed the existence of one or more such material considerations, the inspector then had to conduct a balancing exercise and decide whether those considerations in fact outweighed the provisions of the development plan and the harm which would be caused if the development was allowed to proceed. I see no basis for saying that if one of those material considerations is said to be the non-availability of a suitable alternative site it is for the appellant for planning permission to prove such non-availability. As with any other material consideration, the question is whether the evidence which the parties have chosen to call reveals the existence or non-existence of another site which would meet the needs of the applicant for planning permission. In these circumstances, I do not believe that the inspector's approach to the burden of proof was flawed.
40. (ii) The Secretary of State's policy. In the course of the hearing, Ms Sheikh reverted to the stance adopted by the Council in its claim form. She contended that the issue was not so much a matter of what in law the burden of proof was, but rather whether the Secretary of State's policy was to require applicants for planning permission for a development which conflicted with the provisions of a development plan – and who were contending that there was no suitable alternative site which catered for their needs – to prove that such a site was available. That policy was said to emerge from what the Secretary of State had said when refusing planning permission following the Smithy Fen inquiry. In para. 34 of his decision, the Secretary of State had said:

"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 road side (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."

The references in brackets are references to particular paragraphs in the inspector's report. The only one of those paragraphs which could be said to show that the inspector's approach had been to require the appellants to prove that no suitable alternative sites were available was para. 7.40, which reads:

"This is not a case where the evidence establishes that no alternative sites are available. The occupants have not looked for alternative sites. They have not sought planning permission for the use of unused land at the Pine Lane site. Nor have they investigated vacant authorised plots at Setchel Drove or Water Lane. Undoubtedly, finding sites is not easy but a structured, thorough search exercise is necessary if it is to be argued that harm in one location has to be accepted because no alternative sites exist. Furthermore, there is no reason for confining any search to South Cambridgeshire District as the occupants have no need to be resident in this district. The individual occupiers have different travelling histories extending to different areas all around the country. They have not searched widely for sites."

41. I do not think that this paragraph shows the inspector was requiring the appellants to prove that no suitable alternative sites were available. What he said was that this was not a case "where the evidence establishes that no alternative sites are available". He did not say that this was a case in which the appellants had not established that no alternative sites were available.
42. But to the extent that in reaching his decision the Secretary of State (as opposed to the inspector) could be said to have required the appellants to show that no suitable alternative sites were available, did that require the inspector in the present case to approach the case in the same way? In other words, was the Secretary of State's approach in the Smithy Fen Inquiry a material consideration which the inspector had to take into account in the light of section 38(6) of the 2004 Act? Helpful guidance on that question was given by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137 at p. 145:

"In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgement indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision."

43. It is not that easy to elevate the approach which the Secretary of State took in the Smithy Fen Inquiry to the status of a policy or settled practice which an inspector considering a subsequent application for planning permission should follow unless cogent reasons for departing from it are given. The court was not referred to any other occasion on which the Secretary of State adopted that approach, and the circular which the Secretary of State issued on 2 February 2006 (Circular No. 01/2006) on planning for gypsy and traveller caravan sites – less than two months after his decision following the Smithy Fen Inquiry which was made on 7 December 2005 – said nothing about such a policy. On the contrary, para. 69 of the Circular reads:

"There will be occasions when local planning authorities refuse planning permission for gypsy and traveller sites. A Planning Inspector considering any subsequent appeal will have regard to the development plan so far as is relevant, and will take into account all material considerations, which should already have been addressed at the application stage. These will include the existing and planned provision of, and need for, sites in the area, the accuracy of the data used to assess need, the methodology employed in the assessment and how up-to-date it is, information on pitch availability on public and private sites, personal circumstances and alternative accommodation options."

I acknowledge that para. 69 does little more than identify some of the material considerations which an inspector may have to address, but if the Secretary of State's policy was for those refused planning permission to prove that there were no "alternative accommodation options" that policy may have been referred to there. In any event, it is questionable whether any practice on the Secretary of State's part to require applicants for planning permission to show that there are no suitable alternative sites would be a lawful one if it purported to impose on applicants an evidential burden which the law does not sanction.

44. But the most significant point, in my judgment, is that in para. 74 of her decision the inspector gave cogent reasons for her conclusion that there was no such burden on Mr and Mrs Brown. It may be that the inspector was not purporting to explain why her approach was different from that of the Secretary of State in the Smithy Fen Inquiry, but what she said in fact explained why she was approaching the question of the availability of alternative sites in the way she did. That was a sufficient explanation for departing from any practice of the Secretary of State to the contrary.
45. (iii) The inspector's finding on the availability of alternative suitable sites. The inspector found that although there may have been plots which were suitable for gypsy use in the vicinity of Huntingdon, Ely or Cambridge, none of them were both available for rent or purchase by Mr and Mrs Brown and plots which they could afford. The Council contends that this was not a finding which it was open to the inspector to reach on the evidence. What she should have found was (a) that there were plots suitable for gypsy use which were available to Mr and Mrs Brown on land at Chesterton Fen in Milton, just north of Cambridge, and (b) that there was no evidence at all that Mr and Mrs Brown had done anything to find out whether there were available plots suitable for them in the areas of two other local planning authorities – East Cambridgeshire District Council and Huntingdonshire District Council. The latter contention can be disposed of quickly. There was evidence about the efforts made by Mr and Mrs Brown to find a suitable plot in those areas to no avail. That was Mr and Mrs Brown's evidence referred to in [23] above.
46. The evidence about the land at Chesterton Fen requires some explanation. Within the land at Chesterton Fen allocated by the Local Plan for gypsy use, there were two tracts of land with the potential for development and occupation as gypsy sites. One of those tracts of land – at the southern end of the allocation – was a site owned by Cambridge City Council, known as Greengates Piggeries. The inspector found that there would not be a plot on this site available for Mr and Mrs Brown and their family in the immediate future. That finding was based on three things:

(a) The land had been leased by Cambridge City Council to the same family for many years. It had been used for breeding cattle and keeping horses. The lease had been renewed in December 2004 on a long-term basis, and the lessee, Christopher Barrett, had no intention of giving the land up. That finding was based on the contents of a letter dated 12 August 2005 from a planning consultant, Philip Brown, to South Cambridgeshire District Council, which enclosed renewed applications for planning permission on sites at Sandy Park to the north of the land at Chesterton Fen allocated for gypsy use.

(b) Although the land had been allocated for gypsy use by the Local Plan, it nevertheless required the grant of planning permission for such use. Even if planning permission was granted by South Cambridgeshire District Council, the City Council would still have to agree to a change of use which might have both financial and political implications. The City Council may not have objected to the allocation, but there was no indication that it had supported such an outcome.

(c) Substantial infrastructure work would have been needed to meet the requirements of the Local Plan if the land was to be suitable for gypsy use.

47. The other tract of land at Chesterton Fen was a field south of Grange Park. Unlike Greengates Piggeries, this land had been granted planning permission for 17 pitches for gypsy use in 2004. But the inspector still found that none of those pitches would be available for Mr and Mrs Brown and their family in the immediate future. That finding was based on two things:

(a) Like Greengates Piggeries, substantial infrastructure work would have been needed to meet the requirements of the Local Plan if the land was to be suitable for gypsy use.

(b) The land was owned by Amos Webb who lived opposite the site. He wanted all 17 pitches for his own extended family. They would not be available – whether for sale or rent – to persons who were not members of his family, especially not to any of the residents of Sandy Park. This finding was also based on Philip Brown's letter of 12 August 2005, which informed the Council that that was what Mr Webb had told him. The inspector noted that Mr Webb had sworn an affidavit in October 2005 confirming that none of the pitches would be available to accommodate any of the residents of Sandy Park, though when he had been written to in February 2006 and asked whether any of the pitches would be available for Mr and Mrs Brown and their family, he had failed to respond.

48. The challenge to the inspector's finding that plots on the land at Greengates Piggeries and pitches on Mr Webb's land would not be available to Mr and Mrs Brown and their family in the immediate future was based on the reliance which the inspector placed on Philip Brown's letter and Mr Webb's affidavit. The letter was written in August 2005, and was therefore after Mr and Mrs Brown had moved to the site in Schole Road. To the extent that it was based on what Mr Barrett and Mr Webb had told Philip Brown, it was unsigned, and Philip Brown had not been called to give evidence of his conversations with them. And Mr Webb's affidavit related only to his unwillingness to make the pitches available for residents of Sandy Park. Ms Sheikh contended that the letter and the affidavit were a wholly inadequate basis on which to make the finding that plots on the land at Greengates Piggeries and pitches on Mr Webb's land would not be available to Mr and Mrs Brown in the foreseeable future.
49. I do not accept this contention. The weight which the inspector was to attach to the letter and the affidavit was entirely a matter for her. Even though Philip Brown did not give evidence, the letter he wrote was nevertheless evidence in the inquiry. It was unsigned only because what was produced was a copy of the office copy, not a copy of the original which would have been in the Council's files. There was no reason to suppose that what Mr Barrett and Mr Webb had told Philip Brown in August 2005 did not reflect what their attitude would have been in 2004 (when Mr and Mrs Brown moved to the site in Schole Road) if they had been asked. And although it is true that Mr Webb's affidavit related only to residents of Sandy Park, that, no doubt, was because his affidavit was for use in the renewed applications for planning permission relating to sites at Sandy Park. Since Mr Webb had told Philip Brown in August 2005 that the pitches would only be available to members of his own extended family, the fact that he had said in October 2005 that they would not be available for residents of Sandy Park did not mean that they might be available for Mr and Mrs Brown. Indeed, although Philip Brown's letter referred to a number of other matters, the only weight which the inspector attached to the letter and the affidavit – at any rate so far as Mr Webb's letter was concerned – related to the views Mr Webb had expressed as to who was to live on the land. It was entirely open to the inspector to rely on the contents of the letter and the affidavit to make the findings which she did.
50. In the interests of completeness, I should deal with some of the other contentions in the claim form, even though Ms Sheikh did not develop them orally. It was said that there was no evidence that Mr and Mrs Brown had been looking for sites in a "structured manner". That was, I assume, a reference to what the inspector in the Smithy Fen Inquiry had said (in para. 7.40 of his report) that "a structured, thorough search exercise is necessary if it is to be argued that harm in one location has to be accepted because no alternative sites exist". But once the inspector had not doubted the genuineness of Mr Brown's evidence that during 2004 he had made extensive inquiries locally in and around Cambridge, Huntingdon and Ely for another site, but that all his inquiries had come to nothing, the fact that there was no evidence that the search was a structured one (whatever that means) does not take the matter further. It was said that Mr and Mrs Brown did not approach the Council for suitable sites, but that contention overlooked the inspector's findings that (a) Mr Brown had asked the Council's environmental health officer (who regularly kept a tally of the sites available for gypsies within the Council's area) for help and advice in connection with their search for an alternative site, but he had not been able to help them, and (b) even if the Council's planning department had been approached, they would not have directed the Browns to any particular site. It was said that they did not ask Gloria Buckley, Mrs Brown's aunt, who ran "a nearby site", about the availability of pitches, but that contention overlooked the inspector's findings that (a) the site was too far from Cottenham, (b) there were no vacancies there (at any rate at the time of the inquiry) and (c) there would not have been any pitch there large enough for what the Brown family needed. Finally, it was said that Mr and Mrs Brown had not approached Mr Barrett or Mr Webb about the availability of pitches on their respective tracts of land, but that overlooked the point that such approaches would, on the inspector's finding, only have resulted in Mr and Mrs Brown being told that pitches on those sites were not available.
51. The final point taken on behalf of the Council relied on the conclusion of the Secretary of State in para. 34 of his decision following the Smithy Fen Inquiry that alternative sites for the applicants in that inquiry could well have been available. If the inspector in the present case was going to come to a different conclusion, it is said to have been incumbent upon her to give cogent reasons for doing so. It was contended that she failed to do that.
52. I cannot go along with this argument at all. In the North Wiltshire case, Mann LJ went on to add a cautionary note at p. 145:

"To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weight the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."

In my judgment, the circumstances of the appellants in the Smithy Fen Inquiry were very different from the circumstances of Mr and Mrs Brown. Two things stand out. First, unlike Mr and Mrs Brown, many of the applicants in the Smithy Fen Inquiry did not have their roots in Cambridgeshire. The inspector in that inquiry had found, in para. 7.40 of his report, that they had "different travelling histories extending to different areas all around the country". Secondly, although some of the applicants were relying on health and educational issues which were said to justify permitting them to remain at Smithy Fen, none of their cases were remotely similar to the exceptional circumstances which Kelly Marie's condition gave rise to. The needs of the Brown family were very different from those of the families in the Smithy Fen Inquiry.

The challenge to the inspector's reasons

53. In the claim form, it was alleged that the inspector's conclusions were unintelligible, parts of her reasoning were obscure, and it was not possible to discern the basis for her decision. The argument was considerably refined at the hearing. It boiled down to the fact that the inspector had not given reasons for departing from (a) the policy of the Secretary of State to require applicants for planning permission for a development which conflicts with the provisions of the development plan – and who were contending that there was no suitable alternative site which catered for their needs – to prove that such a site was not available, and (b) the finding of the Secretary of State in the Smithy Fen Inquiry that alternative sites could well have been available. Ms Sheikh acknowledged that this argument was the same as some of the previous arguments she had deployed, though in a different guise. Having already rejected them, it follows that I need say no more on the topic.

Conclusion

54. For these reasons, I have concluded that there are no grounds to question the validity of the inspector's decision, and that this application must accordingly be dismissed. As I told the parties at the conclusion of the hearing, I wish to spare them the expense of attending court when this judgment is handed down. At present, I see no reason why costs should not follow the event, and my provisional view is that the Council should pay the Secretary of State's costs of this application which provisionally I summarily assess at £7,877.75. I do not at present think it appropriate to order the Council to pay Mr and Mrs Brown's costs of the application, because their interests were sufficiently looked after in the submissions of counsel for the Secretary of State. If the Council or Mr and Mrs Brown wish to argue otherwise, their solicitors should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide what order to make as to costs without a hearing on the basis of such written representations as the parties wish to make. If the Council wishes to apply for permission to appeal, its solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will decide that issue as well without a hearing on the basis of such written representations as are made. Any appellant's notice will still have to be filed within 21 days of the handing down of this judgment.