England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Judgement handed down at: Courts of Justice Crown Square Manchester M3 3FL
		7th January 2009

JUDGE GILBART QC:

1. This is an application under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") by Mr Langton and Ms McGill, whereby they ask the Court to quash a decision letter of 22nd November 2007 issued by an Inspector of the First Defendant Secretary of State. In that decision, the Inspector dismissed their appeal against the refusal of the West Dorset DC to grant planning permission for what was described as " retention as change of use -stationing residential mobile home - temporary permission" after conducting a public inquiry on 12^th September 2007, at which they were represented by a chartered town planner, Mrs Alison Heine B.Sc.(Hons)., M.Sc, M.R.T.P.I., who also gave expert evidence on their behalf, and also called the male claimant to give evidence .
2. The Decision Letter sets the scene for this inquiry.

"Procedural Matters

1 There are two caravans on the appeal site. As retention is not an act of development, the proposal is more accurately described as the change of use of land for the stationing of two Caravans for a temporary period, and I have considered the appeal on this basis. The statement of common ground explains that planning permission is sought for three years, although at the inquiry the appellants suggested that four years may be a more appropriate period of time.

2 The appellants describe themselves as new travellers. ODPM Circular 01/2006 is concerned with gypsies and travellers as an overall group and does not distinguish between them in terms of planning policy. Accordingly, where there are references in local policies and other documents simply to gypsies, I have taken this to embrace persons described as travellers,

3 The Council has issued an enforcement notice requiring residential use of the site to cease. An appeal was dismissed in 2005, and the notice was upheld with an extension to the compliance period.

Main issues

4 I consider that the main issues in this appeal are:

(i) Whether the occupants of the appeal site are gypsies or travellers for the purposes of planning policy, and, if so, whether the proposal would represent a sustainable form of gypsy/ traveller site development.

(ii) The effect of the proposal on the character and appearance of the Dorset Area of Outstanding Natural Beauty (AONB).

(iii) Whether any harm arising from the proposal would be outweighed by other considerations.

3. In the event, as appears below, the Inspector dismissed the appeal. He approached the decision by considering each of the three issues. Mr Cottle seeks to attack the decision on two main grounds

(a) The way in which the Inspector addressed the rights of the Claimants under Article 8 of ECHR

(b) His treatment of the balance to be struck between the need case, which supported the grant of permission, and the harm done to the Area of Outstanding Natural Beauty ("AONB").

4. Miss Olley expressly disavowed any argument that, if I upheld either ground, yet I should go on and exercise my discretion so that I would dismiss the appeal on the ground that the outcome of the decision would have remained the same.
5. As will become apparent, I reject the claimants' first ground, but uphold the second.

The Decision Letter

6. The Inspector, in addressing the first issue identified by him, spent some time setting out the personal circumstances of the claimant and his partner:

"Traveller Status

5 Gypsies and travellers are defined in ODPM Circular 01/2006 as 'Persons of nomadic habit of life, whatever their race or origin, including such persons who on grounds only of their own or their family's or dependants' educational or health needs or old age have ceased to travel temporarily or permanently,..' The site is occupied by the appellants and their two year old son. At the date of the inquiry, the birth of the couple's second child was imminent.

6 The appellants are not of traditional gypsy descent, but as the definition in the Circular explains, gypsy and traveller status is not dependant on ethnic origin, and a nomadic habit of life can be acquired over a period of time. The Courts have held that the word 'nomadic' indicates a sense of purpose for the travelling, and that there should be some recognisable connection between the wandering or travelling and the means whereby the persons concerned make or seek their livelihood (R v South Hams DC, Document 7).

7 I have read that Mr Langton started travelling with a donkey, mule and cart in 1994, but there is no clear evidence of any economic purpose being associated with travel at this time. From 1998 -2002 there are references to work linked to the travelling, and Mr Langton was engaged in hedge-laying, fruit-picking and work at festivals, More details are available from 2003, and a pattern emerges of travelling from the appeal site to hold craft workshops and undertake other work at festivals in the South-West of England, with casual work, including labouring and farm work in 2003 and 2004. The festival season extends from May to September, and, with his partner, he is away for at least one week in each month of this period.

8 Ms McGill did not give evidence to the inquiry, but I heard that she had spent 3-4 years up to 2000 travelling in this country and abroad. She supported herself during this earlier period of travelling by such activities as busking and jewellery making.

9 In addition to donations at craft workshops and monies earned at the festivals, the appellants also receive income in the form of family tax credit and undertake casual work from Meerhay during the winter months. However, whilst they do not depend solely on the money which they gain when travelling, it contributes to their income and I am in no doubt that there is an economic purpose to their travelling.

10. The appellants do not travel in a group, although Mr Langton has done in the past. Whilst Neill LJ in R v South Hams DC refers to living and travelling together in cohesive groups being a feature of nomadic peoples, Leggatt LJ, in the same judgement, makes the point that the term 'gypsies' is not expressly confined to those who travel in groups. In my experience, it is not uncommon for gypsies and travellers to find their own sites and travel out from them as individual families. When the appellants do this, they use the smaller touring caravan and leave the larger one at The Wintergreen Barn. During these periods, the caravan which leaves the site serves as their home, and I do not find the appellants' use of caravans at odds with a nomadic habit of life.

11 I am satisfied that travelling undertaken by the appellants in recent years has been associated with their livelihood, and, although they are based at Meerhay for the greater part of the year, I do not regard the extent of travelling currently being undertaken during the festival season as so small as to prevent them coming within the definition in the Circular. In this regard, I note that the Circular refers to changes in traditional patterns of work and it also explains that the gypsy and traveller community has generally become more settled.

12. In assessing whether a nomadic habit of life has been acquired, a key factor is the extent of time over which travelling for economic purposes has taken place The evidence before me indicates that Mr Langton has followed this lifestyle for almost ten years, and I have no reason to doubt his intention to continue with this pattern of living. Whilst Ms McGill has not travelled for as long a period of time, she is the partner of Mr Langton and from what I have heard and read the couple share the same lifestyle. I have reached the view that their travelling linked to their livelihood is sufficiently well-estab1ished to demonstrate that they have acquired a nomadic habit of life. Accordingly I conclude that they are travellers for the purposes of planning policy." In assessing whether a nomadic habit of life has been acquired, a key factor is the extent of time over which travelling for economic purposes has taken place The evidence before me indicates that Mr Langton has followed this lifestyle for almost ten years, and I have no reason to doubt his intention to continue with this pattern of living. Whilst Ms McGill has not travelled for as long a period of time, she is the partner of Mr Langton and from what I have heard and read the couple share the same lifestyle. I have reached the view that their travelling linked to their livelihood is sufficiently well-estab1ished to demonstrate that they have acquired a nomadic habit of life. Accordingly I conclude that they are travellers for the purposes of planning policy."

7. The Inspector then concluded at paragraphs 13 - 17 that the proposals would represent a sustainable form of gypsy/ traveller site development. He did so in terms not requiring rehearsal in this judgment.
8. He then passed to the effect of the proposal on the AONB:

"Character and Appearance of the AONB

18. The appeal site lies in the Dorset AONB, within the upper part of a valley to the north of Beaminster. It is in an attractive location in an area of woodland, beyond which rise steeper hillsides. Environment Policy C of the Structure Plan explains that within AONBs, the conservation of the natural beauty of the landscape has priority. In the Local Plan, Policy SAl makes it clear that proposals will only be permitted in the AONB if their scale, siting and design would conserve the quality of the landscape, and Policy HS9 seeks to restrict gypsy sites to that part of the District outside the AONB. Circular 01/2006 clearly accepts the principle of gypsy and traveller sites in rural settings which are not subject to special planning constraints, but sets out a more stringent approach to proposals in AONBs. In such locations, planning permission should only be granted where it can be demonstrated that the objectives of designation would not be compromised.

19. The appeal site is a compact plot within the larger woodland area in the appellants' ownership. It includes the partial structure of a barn, an adjacent caravan and an outdoor living area. There are substantial gaps in the walls of the barn and it has no roof. A tarpaulin extends across the barn and the adjacent caravan, and another is used across the opening behind which the smaller touring caravan is kept. The larger caravan projects beyond the south- west side of the barn, and here and elsewhere it has been painted green. Outside the caravan are various items of furniture with a fireplace in a central position in this outdoor living area, and the appellants' vehicles are parked near the site. The presence of the barn is unaffected by the outcome of this appeal, and at the inquiry the Council did not dispute the appellants' view that the tarpaulin cover could also remain. My view of the appeal proposal is not determined by these elements on the site, and features such as hardstandings, fencing and a day room, which are found on many gypsy sites, are not present here. In this attractive woodland setting though, the form and appearance of the larger caravan and the domestic accoutrements are incongruous and alien features. Glimpses of the smaller caravan through the opening in the south- west side of the barn, the external storage of a disparate range of materials and the presence of the parked cars add to the intrusive effect of the domestic use of the appeal site in this location. The appellants suggested conditions limiting the number of caravans to two and specifying their position, although in view of the compact nature of the appeal site, I do not anticipate that this could result in any material re-positioning of the caravans.

20 The nearby lane carries a bridleway, and the site is visible from close to the point of access to the appellants' land and particularly across this open area. From here a public footpath runs across their land and close to the south-west side of the barn. The plan of rights of way at Appendix E to the proof of evidence of the Council's witness shows another public footpath running past the north-east side of the appeal site. However, a footpath is not evident on the ground in this position, and a waymarker immediately east of the appellants' land indicates that the paths now diverge beyond the site. Bushes near the stream provide some screening on entering the appellants' land along the footpath from the south-east, and there is a low line of plant cover near the barn, The alien arid cluttered appearance of the development, though, is readily apparent from the path, and given its close proximity to the site, I do not consider that additional planting would effectively lessen its impact from this direction, arid a landscaping condition would not lessen my concern. The main parties disagree about the extent to which the local footpath network is used, but the key factor is that the site is clearly visible from two public rights of way.

21. My attention was drawn to the ménage on the adjacent open land to the south- east. I heard that planning permission was granted for this development in 1999, but the full circumstances concerning that proposal are not before me, and the change which has occurred there does not justify the continued intrusive impact of the residential use of the appeal site.

22. Due to the wooded nature of its surroundings there are no distant or extensive views of the appeal site. The presence of the residential use of the land, however, significantly detracts from this secluded woodland location and causes serious localised harm. In consequence the proposal would be at odds with the policy requirements to conserve and enhance the natural beauty of the AONB, and it would thereby compromise the objectives of designation. I conclude that the proposal would be damaging to the character and appearance of the Dorset AONB, and it would thereby conflict with Environment Policy G of the Structure Plan and Policy SAl of the Local Plan.

9. He then passed to the issue of the need for sites:

"Other Considerations

23. The Dorset Traveller Needs Assessment (DTNA) was published in March of this year. The district assessment for West Dorset identifies a demand for 80-84 pitches during the period 2006-2011. Most unauthorised caravans are those of new travellers, and three or four sites for this group are proposed in the rural part of the District. First detailed proposals, based on the DTNA, have been submitted to the South-West Regional Assembly, and have been taken into account in a partial review concerning pitch provision for gypsies and travellers, which forms part of the preparation of the emerging Regional Spatial Strategy (RSS) for the South-West. Policy GT1 of the draft revision to the RSS seeks the identification of sites which would provide for about 1,500 additional pitches in the region from 2006-2011. The distribution of pitches is set out in the accompanying table, which gives requirements of 44 residential and 36 transit pitches for West Dorset over the five year period. Whilst about 70% of West Dorset is within an AONB, a substantial part of this large rural District is not so designated. Policy CT1 of the emerging RSS expects provision to be made for the identified number of pitches in development plan documents (DPDs), and planning permission has been sought for a temporary period to enable sites to come forward in this way.

24. Other indicators reinforce my view that there is a clear general need for gypsy and traveller accommodation in West Dorset. Figures from the bi-annual count of gypsy caravans show that from July 2005 to January 2007 there were between 18 and 52 caravans on land not owned by gypsies, and these unauthorised encampments represent one aspect of need. The single public site has 14 pitches. The Council explained that turnover is low, and indicated that the two vacancies existing, earlier this year were expected to be filled from the waiting list.

25 The appeal site would provide the security of a settled base. This is of particular importance for a family with young children, and would also facilitate access to health and education services. Since the last appeal, the appellants have made enquiries about possible alternative site (sic), and have registered their interest with two estate agents, but no land has been available. Their efforts, though, appear to have been limited to a restricted area, and there is no evidence of a systematic search. It was argued that conflict would arise from sharing a site with traditional gypsies. Whilst I note that the inspector who determined the 2005 appeal thought it highly unlikely that the appellants would be welcomed on the public site in the District, there is no substantial evidence before me on this matter, and consequently it does not add greatly add to the argument on need. However, the Council does not dispute a current absence of possible alternative sites in the District. In this situation, if the appellants were to leave the site, there is a prospect that they would resort to unauthorised encampments. In addition to the unsatisfactory nature of such circumstances for the appellants, unauthorised encampments may pose environmental problems to the landowners and the wider community.

26. There is a clear general need for gypsy and traveller accommodation in West Dorset, which will be addressed in a forthcoming DPD. In addition, the appellants have a personal need for a settled base, and there is no evidence of available alternative accommodation at the present time. I conclude that other considerations support the appeal proposal, and I consider whether this support outweighs the harm relating to the second issue in my overall conclusions below."

10. Having dismissed the alleged effect on trees covered by a Tree Preservation Order, he passed to his conclusions:

"Conclusions

28. I have found that the appellants are travellers for the purposes of planning policy and that the proposal would represent a sustainable form of gypsy/ traveller site development. There is support for the proposal from factors relating to the general need for gypsy and traveller accommodation and the appellants' personal need for a base, and Circular 01/2006 makes it clear that consideration should be given to granting a temporary permission where there is no alternative available accommodation but a reasonable expectation exists that sites are likely to come forward through a site allocations DPD.

29. The continued presence of the traveller site at The Wintergreen Barn, albeit for a limited period, would, however, cause substantial localised harm to this part of the Dorset AONB, and my concern in this regard is reinforced by its ready visibility from two public rights of way. The AONB is a nationally recognised designation whose primary purpose is to conserve and enhance natural beauty, and policies in the Structure and Local Plans make clear the importance of safeguarding its landscape. Although localised, the harm to the AONB in this case is significant, and I conclude that it would not be outweighed by the considerations which support the proposal, together with my findings on sustainability.

30. In considering the appeal proposal I have taken into account the human rights of the appellants and their family. An enforcement notice requiring the residential use to cease is effective, and, if the appeal is dismissed, it is likely that the Council would seek to secure the family's removal from the site. The loss of their home would represent an interference with their rights under Article 8 of the European Convention on Human Rights. For the reasons given above, I consider that the harm to the AONB resulting from the continued residential occupation of the appeal site would be significant. Taking into account all relevant factors, I am satisfied that the legitimate aim of conserving the natural beauty of the AONB can only be adequately safeguarded by dismissal of the appeal. The protection of the public interest cannot be achieved by means which are less interfering with the appellants' rights. Dismissal of the appeal is necessary and proportionate, and hence would not result in a violation of their rights under Article 8.

31. None of the suggested conditions would overcome my objection to the appeal proposal. For the reasons given above, and having regard to all other matters raised, I conclude that the appeal should be dismissed."

First ground of challenge

11. For the claimants Mr Cottle contends that because the decision to refuse permission would require the claimants to leave their home, Article 8 of the ECHR was therefore engaged. He contends that the effect of a decision on Article 8 rights should not be addressed as any other material consideration, but as a separate matter.
12. An Inspector must act in a way which is not incompatible with a Convention Right under the European Convention on Human Rights; see section 6 of the Human Rights Act 1998. The statutory context for determination of planning appeals is provided by the Town and Country Planning Act 1990 ("TCPA 1990"). Like the local planning authority, an Inspector on an appeal must comply with section 70 of the TCPA 1990 :

"70. Determination of applications: general considerations.

(1) Where an application is made to a local planning authority for planning permission—

(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

13. I accept that Article 8 rights must be addressed by the Inspector, but are they to be addressed under subsection (2) or otherwise? I do not accept Mr Cottle's argument that they must be addressed discretely. In terms of the correct approach generally, I refer to R (SB) v Governors of Denbigh School [2007] 1 AC 100 at paragraphs 27-31 per Lord Bingham of Cornhill and to Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19 at paragraph 15 per Lord Hoffman. The law does not require that there is some formula to be applied to decision making, whereby one stands back after a decision has been formulated and then asks whether the Article in question requires a different answer. The fundamental question is whether, looking at the decision as a whole, the Article 8 rights have been addressed appropriately. That approach is also the one adopted in the field of planning decisions. In O'Brien & Ors v South Cambridgeshire District Council [2008] EWCA Civ 1159 Keene LJ referred to my decision in McCarthy & Anor v Secretary of State for Communities & Local Government & Anor [2006] EWHC 3287 as follows at paragraph 6

"The applications were dismissed by His Honour Judge Gilbart, QC, sitting as a Deputy High Court Judge, on 20 December 2006. He found that the Secretary of State had performed the kind of balancing exercise required by this court's decision in Lough v. First Secretary of State [2004] 1 WLR 2557 so as to satisfy Article 8 of the European Convention on Human Rights ("ECHR") and that the decision was not legally flawed. Permission to appeal against that High Court decision to this court was refused both on the papers and at an oral hearing."

14. In McCarthy I had said the following about the correct approach

47. "I deal lastly with Mr Willers' arguments on Article 8 of ECHR. He contends that there is a 2 stage test in Samaroo v Sec of State for Home Department [2001] EWCA Civ 1139 per Dyson LJ, and that the Secretary of State failed to apply it here. Mr Mould QC drew the court's attention to the subsequent Court of Appeal decision in Lough v First Secretary of State [2004] EWCA Civ 905 [2004] 1 WLR 2557 in which Pill and Keene LJJ (Scott Baker LJ agreed with both of their judgements) considered Article 8 and Samaroo in the context of planning decisions.

48. In Samaroo Dyson LJ propounded a 2 stage test, summarised succinctly in Lough at paragraphs 18-19 by Pill LJ:

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

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

19 At paragraph 20, Dyson LJ stated:

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

Dyson LJ concluded, at paragraph 25:

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

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

" The scope of Article 8 in context

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

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

" 43. It emerges from the authorities:

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

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

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

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

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

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

51. At paragraph 55 Keene LJ said this :

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

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

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

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

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

15. Mr Cottle contends that my decision on this issue in McCarthy & Anor v Secretary of State for Communities & Local Government & Anor [2006] EWHC 3287 is wrongly decided. However, as Keene LJ noted in O'Brien, that approach which I had adopted was expressly approved by the Court of Appeal when it dismissed an application for permission to appeal at [2007] EWCA Civ 510. Sir Paul Kennedy said:

"As Mr Willers rightly submitted, the facts of Lough were such that the focus was on a balancing between two or more groups of private interests, but the observations made by the court in that case and, in particular, in the passages from Pill LJ which I have cited are clearly more widely applicable in a planning context and, as it seems to me, are of considerable assistance to any judge in the position that HHJ Gilbart was in, in the present case. Thus he was able to say at paragraph 52 of his judgment:

"It is clear from the passages above in the judgments of Pill LJ and Keene LJ that

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

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

It seems to me that in the present case that was an entirely appropriate observation for the judge to make and I can find nothing to indicate that he was in any way misled as to the proper approach to the question of proportionality in this case. Indeed, as Richards LJ said when dealing with this matter on paper:

"The judge was right to reject the contention that a rigid two-stage test of proportionality, as referred to in Samaroo, has to be applied in the context of a planning decision of this kind. The attempt to distinguish Lough is unsustainable: the present case is equally one where a balance has to be struck between the interests of the land owner seeking to develop his land, the interests of neighbouring land owners and the wider interests of the community and the protection of the environment."

16. Mr Cottle referred to Wrexham County Borough Council v Berry and South Bucks District Council v. Porter and another [2003] 2 AC 558 [2003] UKHL 26 and to R(Razgar) v Secretary of State for the Home Department [2004] UKHL 27. He argued that they show that a staged approach is required. Wrexham/South Bucks DC is a case about injunctions, albeit those sought under s 187 of the TCPA 1990, and therefore addresses the stage at which eviction is in issue, while Razgar is a case about asylum and immigration. I find nothing in those decisions which suggest that the approach I set out in McCarthy is wrong so far as decisions about the grant or refusal of planning permission are concerned. It follows that the discrete approach favoured by Mr Cottle is not one which should be followed. That being so, the issue of the effect on the claimant's Article 8 rights cannot and must not be addressed outwith the consideration of the planning merits generally. I reached the same conclusion in Jordan v Secretary of State for Communities & Local Government on 2^nd December 2008 (CO/290/2008).
17. With that in mind I now address the nature of the task which the Inspector had to perform when addressing " material considerations " under section 70 TCPA 1990. On the facts of this case, he was required to address the personal circumstances of the Claimants. In that process he had to consider the effect on their family life . I am prepared to hold, and do so, that the effect of Article 8 is to add strength to arguments about personal circumstances.
18. To expect an Inspector to consider the Article 8 questions outside that process would lead to a very odd result, for in a case where s/he reached the conclusion that material considerations did not justify the grant of permission, s/he would then have to consider whether to grant permission for a reason which had figured neither by virtue of the statutory development plan, nor as a "material consideration" as required by section 70. Such complexity is unnecessary for decision makers to give effect to Article 8 and I reject it, as I did in McCarthy.
19. I consider that when one looks at the Decision Letter as a whole, the Inspector has had very full regard to the Claimant's circumstances, and to the inevitable effect that dismissal of the appeal would have on his family life, not least because he has found that there are no available alternative sites for him and his family to remove themselves to. So far as the treatment of the Article 8 issue is concerned, his conclusion that

(a) the legitimate aim of conserving the natural beauty of the AONB could only be adequately safeguarded by dismissal of the appeal,

(b) the protection of the public interest could not be achieved by means which were less interfering with the claimants' rights

(c) dismissal of the appeal was necessary and proportionate, and

(d) hence would not result in a violation of their rights under Article 8,

is in my view properly reasoned. It is a proper treatment of the Article 8 issue.

Second Ground of Challenge

20. The attitude of the planning system towards the provision of gypsy/traveller sites has undergone a sea change in recent times. In the words of Circular 1/2006 of the First Defendant Secretary of State

"18. There is a need to provide sites, including transit sites, in locations that meet the current working patterns of gypsies and travellers. In view of the changes in their work patterns these may not be the same areas they have located in or frequented in the past. This needs to be balanced with the responsibility of gypsies and travellers to respect the planning system."

21. A process is then set out for the assessment of need and the provision of pitches to meet it:

"Overview

Gypsy and Traveller Accommodation Assessments (GTAAs)

20. The assessment of gypsy and traveller accommodation needs is integral to assessment of general accommodation needs. The new planning process will begin by local authorities assessing gypsy and traveller accommodation needs as part of the gypsy and traveller accommodation assessment (GTAA) process.

21. The data collected through the GTAA process will inform the preparation of Development Plan Documents (DPDs) through the process described below. One of the tests of soundness of a submission DPD at its examination will be whether it is founded on robust and credible evidence. The need identified by the GTAA could include gypsies and travellers who do not fall within the definition at paragraph 14. This need should still inform the amount of land to be identified by the planning system. This is necessary to ensure local authorities have flexibility to allocate adequate land for their own sites to provide for those they have assessed as in need of caravan accommodation……………………….

Regional Spatial Strategy (RSS)

22. The information from GTAAs on gypsy and traveller need for sites will, as with other housing needs, be a key component in the overall assessment of need which informs the housing policies in the RSS. The regional view of the body responsible for the Regional Housing Strategy (RHS) can help inform the preparation of policies in a draft revision of a Regional Spatial Strategy (RSS).

22. A diagram in the Circular shows how the process works

"1) GTAA

Assesses need, identifies pitch requirements for each local authority area.

? Pitch numbers

2) RPB/RSS

Checks/modifies pitch numbers provided by GTAAs from a regional perspective.

RSS specifies pitch numbers for each local planning authority.

? Pitch numbers

3) DPD

Identifies specific sites to match pitch numbers from the RSS."

23. A little later the Circular states:

"Development Plan Documents (DPDs)

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 sites which will be used to guide the allocation of sites in the relevant DPD. These criteria will also be used to meet unexpected demand.

32. These criteria based policies must be fair, reasonable, realistic and effective in delivering sites. The adequacy of any criteria will be subject to greater scrutiny under changes to the new planning system introduced by the Planning Act (2004). Planning policies that rule out, or place undue constraints on the development of gypsy and traveller sites should not be included in RSSs or DPDs. The Government has powers to intervene in the plan-making process where it considers that the constraints being proposed by local authorities are too great or have been inadequately justified. This will include where a local planning authority does not adequately address gypsy and traveller site provision in its area.

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.

34. Identifying and allocating specific plots of land is a more difficult process than using a solely criteria based approach. However it ensures some certainty for local people and gypsies and travellers when planning applications are determined by local planning authorities, or appeals are considered by the Secretary of State.

35. There are a number of ways in which local authorities can identify specific sites and make land available.

a) Local authorities have discretion to dispose of land for less than best consideration where it will help to secure the promotion or improvement of the economic, social or environmental well-being of the area, as set out in ODPM Circular 06/03.

b) Authorities should also consider making full use of the registers of unused and under-used land owned by public bodies as an aid to identifying suitable locations. Vacant land or under-used local authority land may be appropriate.

c) Authorities should also consider whether it might be appropriate to exercise their compulsory purchase powers to acquire an appropriate site.

d) Cooperation between neighbouring authorities, possibly involving joint DPDs, can provide more flexibility in identifying sites. Such cooperation is particularly important where an authority has strict planning constraints across its area."

24. The Circular then deals with Transitional Arrangements, which at paragraphs 45-46 include the policy advice on the granting of permissions where a condition requires the cessation of the use after a period – i.e. a " temporary permission;"

"41. In advance of the consideration of new GTAAs at a regional level by the RPB, translated into pitch numbers for DPDs, other means of assessment of need will be necessary. RPBs will need to consider whether there is sufficiently robust information on which to establish district level pitch numbers………………………….

43. Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTAAs. The early data available from the GTAA will be one of a range of information sources that local authorities should consider when assessing the required level of provision to translate into site allocations in a DPD, and RPBs should consider when allocating pitch numbers to each district. Paragraph 31 above refers to the core strategy setting out criteria in advance of site allocations in a DPD. Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.

44. Other sources of information could include;

a) a continuous assessment of incidents of unauthorised encampments, both short and longer-term;

b) the numbers and outcomes of planning applications and appeals;

c) levels of occupancy, plot turnover and waiting lists for public authorised sites;

d) the status of existing authorised private sites, including those which are unoccupied and those subject to temporary or personal planning permissions;

and,

e) the twice-yearly Caravan Count undertaken on behalf of ODPM, which gives a picture of numbers and historic trends.

Local planning authorities will be expected to demonstrate that they have considered this information, where relevant, before any decision to refuse a planning application for a gypsy and traveller site, and to provide it as part of any appeal documentation.

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 and 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."

25. The Circular also deals with the policy applying to sites within an AONB, which is a nationally significant designation:

"52. In areas with nationally recognised designations (Sites of Special Scientific Interest, National Nature Reserves, National Parks, Areas of Outstanding Natural Beauty, Heritage Coasts, Scheduled Monuments, Conservation Areas, Registered Historic Battlefields and Registered Parks and Gardens), 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."

26. In his second ground Mr Cottle contends that the Inspector did not address the question of whether there was a " reasonable expectation" that new sites were likely to become available as per paragraph 45 of the Circular.
27. The general principles affecting decision making are well known, and can be shortly stated:

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

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

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

(d) The Secretary of State must act fairly.

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

28. The First Defendant has elected to file a witness statement from the Inspector, in which he contends that the case was not made that there was a reasonable expectation that sites would come forward. As I shall come to, that statement is, in part at least, mistaken as to what occurred at the inquiry. However I also have concerns that a witness statement from the Inspector is being used to justify his reasoning, and to explain an absence of reasoning. Neither is an appropriate course. The decision letter is the place where the reasons should appear. If it is deficient, a witness statement cannot put them right. It is appropriate to file evidence from an Inspector only where there is some question about whether or not a point was argued or where there is some issue about what happened at the inquiry or hearing.
29. I have set out Circular 1/2006 above. One of the matters it had to address is what should happen in cases where there is an identified need for the provision of pitches, but the process of identification of sites to meet that need is not yet complete. It does so at paragraphs 45-6, cited above. It will be noted that it refers to paragraphs 108-113 of Circular 11/95 of the First Defendant, whose problematic effect in cases such as this I considered in McCarthy at paragraphs 30-34

"30 I turn now to the two other grounds advanced by the Sheridan group. I have some very real sympathy for the Claimants. They were met by a local planning authority which , notwithstanding the clear intention of policy that further provision should be made for gypsies or travellers in the near future, was raising arguments about the likelihood of that occurring in practice, and in S Cambridgeshire in particular. But while it may have been an unattractive argument, that does not mean that it was therefore devoid of merit, nor that the Inspector and Secretary of State were prevented from concluding that, if a temporary permission were granted, it would last for longer than expected because other alternative sites could be delayed in coming forward.

31 The Inspector concluded that the result of the uncertainty would be that further protracted enforcement action would inevitably occur if a temporary consent were granted (paragraph 13.58). In my judgement such a consideration is a perfectly proper one. However the First Secretary of State did not adopt his Inspector's reasoning but gave his own (cited above). It is important to identify what his reasoning actually was. It will be recalled that he stated that he had considered the request for a temporary permission in the light of paragraphs 109 and 110 of his Circular 11/95 , and then concluded that

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

32 Those paragraphs of the Circular read

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

Short-term buildings or uses

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

33 Although the Claimants did not question the use of the Circular, I have very real concerns about the terms of paragraph 109. As written it appears to suggest that if a development is refused a " permanent" permission because it would have harmful effects, that it cannot ever be right to grant permission which is limited in time by condition, and also suggests that the material considerations cannot differ as between the two cases. In my judgement that cannot be right in law, and if intended to be a guide to how authorities and Inspectors should approach the reasons for a decision on the imposition of such a condition, it is far too sweeping. It does not recognise or address those cases where it might be considered that while the harm done by a permanent development would justify refusal, the balance between the reasons for grant and reasons for refusal may be altered if the development is temporary. After all, the effect of a development on its surroundings must be reduced if it limited to (say) 3 years rather than being permanent. The relationship between paragraphs 109 and 110 is also hard to determine. If (see 109) the development would have no unacceptable harmful effects, then one would surely only be considering a " temporary" permission in the sort of circumstances described in paragraph 110.

34 Had the Secretary of State actually adopted the way in which paragraph 109 is written as part of his reasoning, I would have considered that his approach had failed to use adequate or intelligible reasoning. But the fact is that while he had regard to those paragraphs, he did not in fact adopt the approach in paragraph 109. Indeed paragraph 35 of the Decision Letter shows that what he actually did was to conclude that the development would cause serious harm to the landscape which would not be mitigated by landscaping, and then considered what the prospects were that another site would be found in the period of 3 years. He thus did address the balance between the case for the grant of a limited permission and the harmful effects which he found it would have, and concluded that the case for refusal of permission outweighed the case for the grant of permission. In my judgement that was a reasoned decision which he was entitled to make."

30. It appears from the terms of paragraphs 45-46 of Circular 1/2006 that the First Defendant has recognised that a temporary development is not to be regarded as similarly harmful as a permanent development. Thus, in that policy she has addressed what should happen where (a) there is a requirement for more pitches, but (b) they are not yet on stream, and has accepted that the harm caused by a permission may be mitigated because the development in question will occupy its site for a short period. Of course the need for more provision will remain whether or not the provision on the ground has been made; for otherwise a planning authority which is doing its active best to bring sites on stream will be less able to resist a case of need by an appellant on an unallocated site than will its less active neighbouring authority which has not done what is expected of it and has not got round to identifying any sites for allocation. But, no doubt to avoid a case being made for permission where the development could remain for more rather than fewer years, paragraphs 45 and 46 state that when there is an unmet need, no available alternative gypsy and traveller site provision in an area, but a reasonable expectation that new sites are likely to become available in the area which will meet that need at the end of that period for which a temporary permission is granted, then the local planning authority should give consideration to granting a temporary permission. It refers to such circumstances arising, 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.
31. Of course there may be cases where there is no such expectation, but a powerful case on need, which will undoubtedly be a material consideration. An Inspector will still have to consider whether the case for the grant of permission outweighs the case against it. However in doing so s/he will have to recognize that Policy as expressed in 1/2006, and its reference to 10/95, appears to discourage the grant of a temporary permission unless such expectation exists, and give that policy weight.
32. It follows from the above that the Inspector, if he applied paragraph 46, had to ask

(a) Was there an unmet need for pitches ?

(b) Was there any available alternative provision ?

(c) Was there a reasonable expectation that any new sites were likely to become available at the end of that period in the area which would meet that need ?

33. If the answer to (a) was yes, and to (b) was no, then he ought surely have gone on to ask why. A case against a development being advanced by a Council which relied on its own failure to advance Government policy on the identification of pitches is a significantly weaker one than a case advanced by an authority which is doing what it can to identify provision, but which faces constraints in the form of infrastructure, Green Belt and so on.
34. Here the Claimants had dealt with these matters in their case through their expert witness Mrs Heine. It recorded the policy of the Secretary of State set out above, and addressed relevant aspects of the Development Plan. It dealt with

(a) Government Policy, including that as set out above;

(b) The existence of need;

(c) The progress of the RSS and other parts of the DPD;

(d) The lack of available provision.

35. I should refer to three passages in her summary and conclusions which read (my italics):

" 8.1 (E): As permission is sought for a temporary use significant weight should be attached to this unmet need" (i.e. for more sites in the County and in West Dorset, especially for New Travellers) in accordance with C(ircular) 1/2006"

"8.3 Permission is sought on a temporary basis for a period of 3 years… This would give the appellants a settled site for a short period of time while this couple are caring for their young family………………………………It would also ensure that the appellant's accommodation needs are taken into account when are arrangements are made to address the need identified in the GTAA. The harm to the AONB is a relevant factor but this can to a certain degree be controlled by conditions……………. A period of 3 years is justified having regard to the absence of alternative provision, the high level of need identified in the Dorset GTAA for further sites especially for New Travellers, the likelihood that this need will be met as part of the DPD process, and the likely timescale for adoption of the DPD having regard to guidance issued by the South West Regional Assembly. A temporary planning permission would, in my opinion, be a proportionate approach in the circumstances and one that accords with the most up-to-date policy guidance in C(ircular) 1/2006."

"8.9 It is considered that the concerns of the Council could be addressed by planning conditions…….and offer a temporary consent until such time as this authority has had the chance to look for an identify an alternative site. It is argued that good justification exists to grant permission on a temporary basis in accordance with C(ircular) 1/2006 given the current lack of sites and good expectation that sites will have to be found to meet the need that has now been identified."

36. It follows that part of the Claimants' case was that there was a reasonable expectation that pitches would be provided by the date required in policy, namely 2011. That expectation relied, in part at least, on her argument that the authority would be bound to do as was required of it by the policy of the First Defendant Secretary of State.
37. It follows that the Inspector was required to deal with that issue in the context set out at paragraphs 30-32 above. Taking the three issues I identify above at paragraph 32, he has undoubtedly dealt with issues (a) and (b), but he has made no finding on (c). If he concluded that there was a reasonable expectation, then he had to set that against the harm he found would be caused to the AONB. If he concluded that there was not a reasonable expectation, then he had to consider why that was so, and consider whether the need for provision which he had identified outweighed the harm which he had found would be caused to the AONB.
38. The First Defendant has filed a witness statement from the Inspector. That being so, I shall follow the less usual course of identifying him. Mr Richard Clegg BA(Hons), D.M.S., M.R.T.P.I., has filed a statement which refers to paragraph 8.3 of Ms Heine's evidence, and says that (my italics)

"5…………………….This point was not developed, and the thrust of the argument concerning a temporary permission (…..) was that this was appropriate given the work required to address the need for sites rather than there being a reasonable expectation that sites would actually come forward during that time.

6. The Claimants put forward their case for temporary permission on the basis that this would provide a settled site whilst caring for their young family, not on the expectation that planning circumstances would change. It would also ensure that their accommodation needs were taken into account when arrangements were made to address the need identified in the GTAA (paragraph 8.3 Mrs Heine's Proof of Evidence). Mrs Heine's' proof……………and the Statement of Common Ground refer to a period of 3 years. However the Claimants argued that four years would be more appropriate in the light of the L(ocal) P(lanning) A(uthority)'s view that a DPD would not be prepared until 2011."

"7 There was no substantive evidence before me at the inquiry that gypsy and traveller sites would come forward during the next four years……………………Despite the lack of information to indicate that there was a reasonable expectation that sites would come forward, I refer to this issue at paragraphs 26 and 28 of the Decision Letter."

"8 There was no evidence of DPD production in the proofs of Evidence of either the Claimant or the LPA………………."

39. It is clear that the Inspector's paragraph 6 is factually wrong. Mrs Heine had certainly argued that planning circumstances would change, and I am surprised that he found himself able to write that first sentence. But be that as it may, he does go on in the witness statement to set out why it is that he considers that he had no evidential basis on which to conclude that a reasonable expectation existed. The difficulty for the First Defendant is that this Decision Letter never addressed that issue in the way in which it is addressed in the witness statement. In paragraph 26 of he Decision Letter, to which the Inspector refers in the witness statement, he had actually stated that " There is a clear general need…………..which will be addressed in a forthcoming DPD." (My italics). That implies that a reasonable expectation could exist, subject to the timescale in question. Paragraph 28 referred to the policy advice on reasonable expectation, but set out no conclusions about whether or not one existed.
40. In my judgement this was an issue which went to the heart of the case, not least because of the terms of the policy. The terms of the Decision Letter as compared to those of the witness statement show that the Inspector never grappled with it until he wrote the witness statement. Even then, he never addressed himself to the important question of the effect of his apparently implied conclusion that the Local Planning Authority had failed to comply with national and regional policy on the identification of sites to meet the identified need. That question had been expressly raised in evidence before him.
41. I turn now to the AONB point. Had the Inspector dealt with the issues by saying that, however great the need, he was bound to refuse the application because the objectives of the designation would be compromised by the development, then I would have exercised my discretion against the grant of relief. But the Inspector did not adopt that approach. Instead, at paragraphs 26 and 29 he took the approach of considering whether the harm to the AONB would be outweighed by the considerations which supported the proposal, which of course relied principally on the case of need that was advanced. That being so, the serious defects in reasoning and in the treatment of the Claimants' case which I have identified cannot be set aside.
42. I therefore give judgement for the Claimants.
43. I circulated a draft copy of this judgement to Counsel for two reasons

(a) To invite any suggested corrections of factual error, typographical mishap or infelicities of expression

(b) To invite any submissions on applications for appeal or submissions as to costs.

44. I have received suggestions under (a) from counsel for the Defendant for which I am grateful. I have received none from counsel for the Claimants. As to (b) Counsel have agreed the form of my Order, namely that

1. The application be allowed and the decision of the First Defendant dated 22^nd November 2007 be quashed;

2. First Defendant to pay the Claimants' reasonable costs on the standard basis, to be assessed if not agreed; and

3. Claimants' costs to be subject to a detailed Community Legal Service funding assessment.