England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		5 November 2008

1. MR JUSTICE PITCHFORD: This is a challenge by Hilda Rafferty and Bessie Jones under section 288 of the Town and Country Planning Act 1990 to a decision of planning inspector GM Hollington. Mr David Watkinson appears on behalf of the claimants, Mr Colin Thomann on behalf of the first defendant, the Secretary of State. The second defendant, North Somerset Council, does not take part in the hearing.
2. The land, the subject of the appeal before the inspector, is situated in two plots on Reeves Ground, alongside Banwell Road between the villages of Banwell and Winstom in North Somerset. The site fell within the Mendip Hills area designated as an area of outstanding natural beauty.
3. The claimants are gypsy travellers. They purchased the land in 2002. After one unsuccessful application they applied on 16 February 2006 to North Somerset Council (the local planning authority, "LPO") for planning permission to change the use of the land from agricultural to residential for two Romany gypsies. That application was refused on 25 July 2006.
4. The appeal from the LPO was heard by the Inspector in May and his decision was issued on 12 June 2007.
5. The claimants were not living on the land; they lived in Pershore in Worcestershire. Mrs Jones had two children, aged ten and eight.
6. The inspector identified four main issues in the appeal as follows:

"2. I consider the main issues in this appeal to be:

(a) the effect of the proposed development on the character and appearance of the surrounding area, part of the Mendip Hills Area of Outstanding Natural Beauty (AONB);

(b) the effect of the proposed development on the patterns of travel, particularly car use;

(c) the effect of the proposed development on highway safety; and

(d) whether any conflict with policy or other harm would be outweighed my other material considerations, including the need for gypsy sites and the appellants' personal and family circumstances."

7. The development plan comprised regional planning guidance for the south-west of England, the Joint Replacement Structure Plan and the North Somerset Local Plan.
8. Policy number 17 of the Structured Plan stated that within areas of outstanding natural beauty, conservation of the landscape character and distinctiveness was a priority.
9. The local plan disclosed policy H/12 that outside the Green Belt priority would be given to residential gypsy and travellers sites which were not in the open countryside. This was not Green Belt land.
10. Policy ECH/7 allowed development in "landscaped character areas", provided the particular character of the landscape was not adversely affected. By policy ECH/8 within the Mendip Hills AONB development was to be resisted if it harmed the natural beauty of the landscape. Policy T/10 permitted development only if it would not prejudice highway safety or emergency vehicle access. The Supplementary Planning Document (SPD) North Somerset Landscape Character Assessment assisted the judgment of the "landscape character and distinctiveness" of the area.
11. The inspector described the appeal site as an almost rectangular field, boarded by trees and hedges and crossed by an electricity line. Near to the western boundary were some sheds or field shelters and three small touring caravans. Disused agricultural equipment and a digger were situated in the field. The site fell within an area described in the SPD as landscape area J1. Lox EU Rolling Valley Farmland described as "a small to medium scale peaceful pastoral landscape with fields bounded by thick hedges with hedgerow trees and occasional belts or clumps of wet woodland."
12. The inspector assessed impact which the addition of two mobile homes and touring caravans would have upon the immediate surroundings of the site. The inspector concluded that the proposed siting would cause unacceptable harm to the character and appearance of the surrounding area; it would conflict with Circular 01/2006 and the development plans to which I have already referred. This is a finding which the claimant does not seek to challenge.
13. While the development would require the occupants to travel by car, the inspector did not consider that significant harm with result. He resolved the pattern of travel issues in the claimant's favour. He noted an inevitable increase in vehicular traffic would result, but resolved the highway issue also in favour of the claimant.
14. I turn then to the claimant's criticisms of the inspector's decisions and his reasons.
15. First, it is said in that the inspector failed to give adequate consideration to Circular 01/2006 from the Office of the Deputy Prime Minister entitled Planning for Gypsy and Traveller Sites. In particular, in considering the possibility of grant of temporary planning permission, he failed to have regard to paragraphs 45, 30 and 33 of the Circular as they apply to the intention of the Circular expressed at paragraph 12(c):

"To increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission in order to address under-provision over the next 3-5 years."

17. The aim of the Circular is set out at paragraphs 2 and 3:

"2. The Government is committed to ensuring that members of the gypsy and traveller communities should have the same rights and responsibilities as every other citizen. This Circular replaces Circular 1/94, Gypsy Sites and Planning and provides updated guidance on planning aspects of finding sites for gypsies and travellers and how local authorities and gypsies and travellers can work together to achieve that aim. The policies in this Circular apply throughout England.

3. A new Circular is necessary because evidence shows that the advice set out in the Circular 1/94 has failed to deliver adequate sites for gypsies and travellers in many areas of England over the last 10 years. Since the issue of Circular 1/94, and the repeal of local authorities' duty to provide gypsy and traveller sites there have been more applications for private gypsy and traveller sites, but this has not resulted in the necessary increase in provision."

18. Paragraphs 45 and 46 draw attention to the possible use of temporary planning permission in the context of caravan and other sites. These paragraphs advise as follows:

"45. Advice on the use of temporary permissions is contained in paragraphs 108-113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.

46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay."

19. The Circular advised the regional and local strategy towards the problem of underprovision. A Gypsy and Traveller Accommodation Assessment (GTAA) made by LPOs would identify local needs for pitch numbers. The assessment made would inform the preparation of a Regional Spatial Strategy (RSS). Local Development Frameworks (LDF) via Development Plan Documents (DPD) would descend to the detail of allocating specific sites believed to be suitable to receive planning applications in the relevant category.
20. Paragraphs 30 and 31 of the Circular provide:

"30. The number of pitches set out in the RSS must be translated into specific site allocations in one of the local planning authority's DPDs that form part of the LDF. 31. The core strategy should set out criteria for the location of gypsy and traveller site which will be used to guide the allocation of sites in the relevant DPD. These criteria will also be used to meet unexpected demand."

21. Paragraph 33 imposes duties upon LPAs as to the allocation of sites:

"33. Local authorities must allocate sufficient sites for gypsies and travellers, in terms of the number of pitches required by the RSS, in site allocations DPDs. A requirement of the Planning Act (2004) is that DPDs must be in general conformity with the RSS. Criteria must not be used as an alternative to site allocations in DPDs where there is an identified need for pitches. Local planning authorities will need to demonstrate that sites are suitable, and that there is a realistic likelihood that specific sites allocated in DPDs will be made available for that purpose. DPDs will need to explain how the land required will be made available for a gypsy and traveller site, and timescales for provision."

22. These requirements are, submits Mr Watkinson on behalf of the claimant, mandatory, and the inspector failed to take them into account when applying paragraph 45. Had he done so, the inspector should have concluded that within a reasonable period the planning outlook would have changed, new sites were likely to become available.
23. Counsel for the Secretary of State concedes that the inspector made no specific reference to paragraph 45, but demonstrated that the inspector did indeed apply the policy. At paragraphs 28 to 36 of his decision letter, the inspector noted, among other things:

(i) the lack of available sites; (ii)) his own view that there was a modest need for further sites in the North Somerset area; (iii) the site that North Somerset Council was, with other councils, in the process of examining need for gypsy and traveller accommodation assessment; and (iv) a development plan document was inspected for adoption in 2010/2011 that priority would be likely to be given to urban growth areas rather than the countryside."

24. The Inspector considered the very question posed by paragraph 45 in the Circular and concluded:

"37... In my view, in the absence of the appeal site there is no evidence to show there is a realistic prospect of this [stability for the appellants] being achieved in the foreseeable future - it is not known whether or not or when any site allocations DPD will bring forward sites.

...

39. I have considered whether a temporary permission would be appropriate, bearing in mind that this would not overcome the adverse effects of the development. However, given the uncertainty about whether or when any new gypsy sites may become available following the GTAA, I consider there not to be a reasonable expectation that the planning circumstances will change at the end of a temporary period of reasonable length."

25. The claimants in their skeleton argument rely on the decision of Harrison J in R (on the application of William Lee) v The First Secretary of State [2003] EWHC 3235, in which the inspector was found not to have considered whether temporary planning permission should have been granted. That is plainly not, in my view, the present case: Inspector Hollington did apply his judgment to the question but concluded that there was no expectation of changes in availability during the reasonable period of temporary permission.
26. Mr Watkinson submitted, nevertheless, that the inspector erred in using the expression that it was not known "whether or when" any relevant site allocations would be made in the DPD. The evidence was that the LPA had embarked on the GTAA. It could therefore be anticipated, given the requirements of the Circular, that land suitable for relevant applications for planning would be identified by 2011. I was informed during argument, and it is now common ground, that in fact the Revised Regional Spatial Strategy was published for consultation on 17 October 2008. It assessed the need for 36 permanent and ten transit pitches in the North Somerset area as a whole. As a rough estimate, the designated AONB Mendip Hills comprises one-fifth of North Somerset.
27. As the inspector found, priority would be given in the allocation of land from the DPD to housing requirements areas in urban growth areas. Furthermore, the Circular anticipated, as an example, in the opening sentence of paragraph 46 that temporary permission might be granted when the LPA was embarking upon site allocations in the DPD in the expectation that sites would become available at the end of a reasonable period of temporary permission. The inspector was considering this appeal on 15 May 2007. The timetable to which the LPA was working envisaged the commencement of the process of allocation in mid 2009. That was simply the beginning of the process designed to make land available. In my view the inspector was entitled to conclude that there was indeed no evidence whether and when sites ready for occupation had become available in the wider environment of the appeal site, the context in which the inspector was making his findings.
28. In the following period of four to five years, the LPA would have reached the stage of identifying land which might be the subject of application for planning permission to provide additional sites, but where they might be in relation to the appeal site no one could anticipate. I do not consider that the inspector can be criticised for concluding that this was not a suitable case for temporary permission.
29. The second ground of complaint is that in considering the needs and circumstances of the claimants the inspector asked the wrong question. Paragraph 5 of the Circular observed:

"5. Gypsies and Travellers are believed to experience the worst health and education status of any disadvantaged group in England. Research has consistently confirmed the link between the lack of good quality sites for gypsies and travellers and poor health and education. This circular should enhance the health and education outcomes of gypsies and travellers."

30. The inspector, it is submitted by Mr Watkinson, asked whether there was a compelling reason why the development should be permitted on this site rather than proceed from the position that the second claimant's children required a stable environment from which to access education and health requiring access to the site on which to make their home. Their need should be assessed against the impact of breach of the development plan.
31. The way in which the inspector expressed himself was as follows:

"36. Circular 01/2006 points out that gypsies and travellers are believed to experience the worst health and education status of any disadvantaged group in England and that a more settled existence can prove beneficial for access to health and education services. However, in this instance, I consider there are no compelling health or education reasons for occupation of only the appeal site itself, in its sensitive location, rather than a need for a settled base somewhere - although I acknowledge no alternative option other than in open countryside has yet been found and none has been suggested by the Council (other than the site where the appellants are not welcome). 37. I have concluded that the proposed development would cause unacceptable harm to the character and appearance of the surrounding area, part of an AONB, but little harm to patterns of travel, particularly car use, and minimal harm to highway safety. The impact on the area's character and appearance could be mitigated and the conflict with the objective of AONB designation lessened to some extent. From both the health and education points of view, but especially in the latter, I consider that stability for the appellants is an important consideration."

32. Far from diminishing let alone dismissing the requirements of the claimants, the inspector was acknowledging the importance of a stable existence on grounds of health and education. He recognised that unless the appeal site was available there was unlikely to be a realistic prospect of achieving the desired stability for his family in the foreseeable future. That is why the inspector concentrated on the importance of this site for the claimant. In my judgment the inspector was not diminishing the importance of the policy and intention behind the Circular.
33. During the course of argument, Mr Watkinson drew my attention to paragraph 12(h) of the Circular. It is one of several subparagraphs which identifies the main intentions. Subparagraph (h) states an intention:

"to promote more private and gypsy and traveller site provision in appropriate locations through the planning system, while recognising that there will always be those who cannot provide their own sites..."

34. For present purposes the words "appropriate locations" require emphasis. Paragraph 52 advises:

"In areas with nationally recognised designations (... areas of outstanding natural beauty,..) as with any other form of development planning permission for gypsy and traveller sites should only be granted where it can be demonstrated that the objectives of the designation will not be compromised by the development."

At paragraph 38 of his decision letter the inspector concluded:

"However, I consider that the harm which would arise from the proposed development is sufficiently serious that it is not outweighed by the need for this gypsy site for the appellants. Consequently, the other material considerations do not prevail over the conflicts with development plan policies and national advice."

I do not consider it demonstrated that the Inspector erred in his approach and application of the Circular to the circumstances of the case he was considering.

35. The third ground concerns the Inspector's approach to the human rights implications of the appeal. In the concluding paragraphs of his decision letter, the inspector said:

"40. The appellants contend that dismissal of the appeal would result in violation of their rights under Article 8 (respect for private and family life and the home), Article 2 of the First Protocol (right to education) and Article 14 (freedom from discrimination) of the European Convention on Human Rights, which are incorporated into the Human Rights Act 1998. However, the appellants do not live on the land, so dismissal of the appeal would not cause the loss of their home. Dismissal would make it difficult to access education services, but would not deny the children access to education, and there would be no discrimination because planning policies such as those which control development in the countryside apply with equal force to the whole population. 41. The effects on the appellants must be weighed against the wider public interest and, for the reasons given above, I have found that the proposal would be harmful to the area's character and appearance (compromising the objectives of AONB designation) as well as (albeit to a lesser extent) patterns of travel and highway safety. I am satisfied that these legitimate aims can be adequately safeguarded only by the refusal of planning permission. On balance, I consider that dismissal of the appeal would not have a disproportionate effect on the appellants."

36. Mr Watkinson submits that the inspector appears to have ignored an interference with the claimant's right to respect for private and family life and a home. It does not follow that because the claimants were not already living at the appeal site the dismissal of the appeal would not involve an interference with the claimants' Article 8 rights. In this context I was taken to several passages in the judgments in Chapman v United Kingdom [2001] 10 BHRC 48 and 33 EHRR 399, Chichester District Council v the First Secretary of State and Ors [2005] 1 WLR 279; and [2004] EWCA Civ 1248.
37. I derive the following relevant principles in these cases:

(i) the individual's right at stake is respect both for the enjoyment of the caravan as a whole and as an expression of identity as a gypsy;

(ii) Measures which affect the stationing of a caravan can amount to interference with that right;

(iii) If the measures proposed would constitute interference, the decision from the tribunal was whether they would be in accordance with the law and justified in pursuit of a legitimate aim. In making that judgment the tribunal is not required to assume the duty upon the state to provide a home to its citizens.

38. In considering this question in the current planning context, the tribunal will be judging whether the degree of interference involved by the measure under consideration would be proportionate or disproportionate to the legitimate aim. The legitimate aim in most planning cases will be the protection of land from harm, occasioned by a particular breach of planning policy formulated in the interests of society generally.
39. In both the Chapman and Chichester cases the defendant conceded that the measures taken did amount to an interference because the claimant was already enjoying a private home and family life on the land concerned. The defendant was seeking removal.
40. This case, however, is different. The claimants and their families are enjoying their family lives in their caravans in Pershore Worcestershire. The measures of dismissal of the appeal and refusal of planning permission, permanent or temporary, would not, it is submitted on behalf of the Secretary of State, constitute interference with an existing enjoyment of an Article 8 right.
41. Mr Thomann submits that what the claimants are seeking is not the preservation of their home and family life, which they already enjoy, but the stability of a permanent residence from which they can access health and education facilities. As the inspector acknowledged, these were of themselves important and weighty considerations.
42. Amongst other passages Mr Watkinson drew my attention to paragraph 75 of Chapman. The Grand Chamber noted a concession made on behalf of the United Kingdom Government as follows:

"The Government accepted that there has been 'an interference by a public authority' with the applicant's right to respect for her home disclosed by the refusal of planning permission to allow her to live in her caravan on her own land and the pursuit of enforcement measures against her."

43. One interpretation of the concession is that since both the land and the caravan belonged to the claimant, any refusal whose effect was to prevent use of the property as a family home was an interference with the Article 8 right. It did not matter whether the land was already occupied for the purpose of residence. What is proposed here is a prohibition upon the use of enjoyment of property for private and family life.
44. In my view the concession must be treated as a concession on the particular facts of the case. It would be surprising if the maker intended to cover a significantly wider ambit of facts than those under consideration. The decision in Chapman was of course the decision on its own facts. A quotation from the judgment at paragraph 102 demonstrates the importance of those facts to the judgment under Article 8.2:

"102. Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The court will be slow to grant protection for those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community."

45. The Grand Chamber held that contracting states owed no general duty to ensure that citizens had a home (see paragraphs 97 to 99). However, gypsies were in a vulnerable position. There was a positive obligation by virtue of Article 8 to facilitate the gypsy way of life since that life was an integral part of a gypsy's ethnic identity (see paragraphs 73 and 96). I do not consider that these statements assist the present judgment since the court was there concerned not with the question whether refusal constituted interference, but with the way in which planning law should be implemented for consideration affecting the assessment under Article 8.2.
46. I therefore return to first principles.
47. When the acknowledged fact is that family and private life was being enjoyed elsewhere, would refusal to change planning use on the appeal site imply an interference either with life as a family, or with a gypsy's entitlement to respect as a member of a travelling ethnic group?
48. In my judgment it would not. I accept the first defendant's submission that the absence of present enjoyment at the appeal site is a material and conclusive factual distinction. In reaching this conclusion, I am aware of the perverse incentive it is capable of creating. As Mr Watkinson correctly observed, these claimants have not taken advantage of their ownership and occupation of the site in order to establish even a temporary home life before making their application for planning permission and instituting their appeal to the inspector. However, the observations made by paragraph 102 of Chapman should be a corrective.
49. If I am wrong in that judgment, the question remains whether the inspector's finding that the appellants had not been caused the loss of their home is sustainable. It clearly is. It was the claimants' case that they required long-term access to health and education facilities. The appeal site would provide the stability necessary to enjoy that access. It seems to me that it was this aspect of the enjoyment of private and family life which dominated the assessment of proportion either under Article 8.2 or at common law. It was also this aspect to which the inspector rightly brought the focus of his assessment. The inspector measured the effect of refusal on the claimants against the wider public interest and in my judgment his conclusion was sustainable.
50. If, contrary to the inspector's view and my judgment, there was a wider interference with private and family life, it seems to me the conclusion breached from his Article 8.2 assessment must have been unchanged. In reaching the decision upon the proportionality of the interference, the inspector would be required to make an assessment of the quality and degree of that interference. There is, it seems to me, a difference in substance between an interference which constricts the family's choice of a future home and an interference which deprives the family of a home already established. The impact of the former in the assessment of proportionality is marginal by comparison with the latter. My conclusion is that the inspector would have brought his focus to bear upon that feature of his decision which would most impact upon this family's needs, and thus inevitably would have reached the same conclusion.
51. Mr Watkinson's fourth ground was that the inspector failed to weigh the availability of temporary permission in his consideration of proportionality. However, he conceded that if he failed on the first ground his fourth would not be arguable.
52. It follows that the claim fails on all four grounds and must be dismissed.
53. MR THOMANN: My Lord I ask for my costs. I handed to the court usher a schedule. My opponent, I understand, doesn't take any points in that.
54. MR JUSTICE PITCHFORD: I am sorry, I missed that.
55. MR THOMANN: There are no points as regards the items that are being raised by my learned friend on the schedule.
56. MR JUSTICE PITCHFORD: Right. Do you have anything to say, Mr Watkinson?
57. MR WATKINSON: My Lord, yes. So far as the claim for costs is concerned, my learned friend is right, I don't contest the amount which is claimed. My clients are both supported by Legal Services Commission, in receipt of public funding, so I ask that any order for costs be made subject to the determination of the amount that they are liable to pay under section 11 of the Access to Justice Act 1999.
58. MR THOMANN: My Lord the best I can do, we would prefer the normal order but I am in your hands.
59. MR JUSTICE PITCHFORD: Which is?
60. MR THOMANN: Simply that we would be entitled to our costs. Then it will be a matter for the Secretary of State of how he goes about enforcing that, or whether he goes about enforcing that.
61. MR WATKINSON: I'm afraid that can't be right. My claimants are statutorily protected under section 11 from any liability to pay other than to be determined by the section.
62. MR JUSTICE PITCHFORD: I shall make an order for the claimants to pay the defendant's costs in a sum which I assess summarily at £6,904, subject to an assessment of the claimant's liability to pay under section 11 of the Access to Justice Act.
63. MR THOMANN: The actual sum on my updated schedule is £7,144.
64. MR JUSTICE PITCHFORD: You are right, I am looking at an earlier version dated 31 October.
65. MR THOMANN: I am much obliged.
66. MR JUSTICE PITCHFORD: The sum which I assess and about which there is no dispute is £7,144.
67. MR WATKINSON: My Lord, there are two other matters. First of all I also need an order for detailed assessment of the costs incurred on the claimants' public funding certificate, that is as between those instructing me and the Legal Services Commission.
68. MR JUSTICE PITCHFORD: You may have that.
69. MR WATKINSON: And the second matter is an application for permission to appeal. Before I get to that, when your Lordship comes to revise your Lordship's judgment, your Lordship bear in mind two matters. First of all your Lordship said that you are informed that the revised regional spatial strategy was published for consultation on 17 October of this year; in fact it was consultation closed on 17 October this year.
70. MR JUSTICE PITCHFORD: Let me just check any note, would you. (Pause) I read:
71. "The Secretary of State sent out revised RSS for consultation and the consultation concluded on 17 October 2008."
72. MR WATKINSON: My Lord, yes.
73. MR JUSTICE PITCHFORD: That is accurate, is it?
74. MR WATKINSON: My Lord, yes, that note is accurate.
75. MR JUSTICE PITCHFORD: Thank you very much.
76. MR WATKINSON: The other matter, your Lordship's judgment referred to my reliance on paragraph 75 in Chapman. The passage which I cited at page 67 of Chapman is paragraph 73. It is a small matter.
77. MR JUSTICE PITCHFORD: My note is in particular 71 to 74 and 78.
78. MR WATKINSON: My Lord that will encompass it.
79. MR JUSTICE PITCHFORD: Of course I read the whole passage, which included 75.
80. MR WATKINSON: Indeed so.
81. MR JUSTICE PITCHFORD: Thank you.
82. MR WATKINSON: My Lord my application for permission to appeal is in relation to ground three. Your Lordship's found against me in relation to the point that Article 8.1 interference can encompass a situation where the effect of the decision is that the claimants are not able to move on to the land, as well as in effect being that they are required to move off it.
83. The reason I ask for permission to appeal is firstly, as it appears is common ground, there is no UK case certainly in which the courts have considered whether such circumstances can amount to an interference with Article 8(1) until this. And the researches of my learned friend has shown in argument that they apply one case in which the matter could be said to be touched on. That was Loizodou v Turkey and for the reasons I gave in argument that case was not comparable to this case.
84. Secondly, although your Lordship has now found against me, your Lordship may consider that another court could take another view in relation to that for the reasons which I gave in the course of argument. Your Lordship indeed touched upon one of those in relation to annex E of the Circular.
85. Lastly, if it were the case that another court were to take another view, then in my submission that would have affected the inspector's approach and affected his consideration of paragraph 46 of the decision.
86. MR JUSTICE PITCHFORD: You want to appeal my judgment that it would inevitably have made no difference to the assessment.
87. MR WATKINSON: Indeed. Those are my submissions.
88. MR JUSTICE PITCHFORD: Thank you very much.
89. MR THOMANN: Two points I make. First of all is not only his Lordship (inaudible) some difficulties but albeit obiter remarks of the Court of Appeal in Chichester my learned friend would have some difficulty on that submission. But more importantly it is probably not necessary for the determination of this decision, certainly not on your finding, to make that ruling of law, given that the material considerations which my learned friend seeks to bring within the cloak of Article 8 were in fact considered under domestic law were given importance by the inspector and in those circumstances the submission that if that particular point of law would have made a difference to his decision, in my submission is unsustainable.
90. MR JUSTICE PITCHFORD: Mr Watkinson, while I am conscious of the importance of the question whether or not the presence of the claimant on the land concerned is or is not a material consideration in the Article 8.1 assessment, in view of my conclusion that on the facts of this case even if it was immaterial the judgment under Article 8.2 was barely affected, means that in my view I should refuse you leave.
91. The reasons I have actually written for my decision are:

"While the issue whether Article 8 right to family life would be interferred with as a matter of importance, my conclusion that on the facts of this case the Article 8.2 assessment would not have been materially affected means that the inspector's conclusion would have been unchanged."

92. MR WATKINSON: My Lord I am obliged. My Lord, I am sorry, there is one other matter and that relates to time for filing an appellant's notice if I choose to so do. Of course I receive funding for this. Normally the time is 21 days from the date of your Lordship's decision. What I would prefer to do, if I were to be given that, would be with the advantage of the transcript of your Lordship's judgment, what I would ask for is your Lordship extend my time to 21 days from the date when a transcript of your Lordship's judgment becomes available.
93. MR JUSTICE PITCHFORD: Yes. Mr Thomann, anything to say about that?
94. MR THOMANN: No, my Lord.
95. MR JUSTICE PITCHFORD: I will order that in the event that the claimants are advised to enter a notice of appeal the time within which that notice must be lodged will be 21 days from the availability of the corrected transcript of my judgment.
96. MR WATKINSON: I am much obliged.
97. MR JUSTICE PITCHFORD: Thank you.