England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION UNDER
SECTION 288 OF THE TOWN AND COUNTRY
PLANNING ACT 1990

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 March 2009

MR JUSTICE SILBER:

I Introduction

1. The issue raised on this application is whether it is appropriate to quash a decision dated 14 March 2008 of a Planning Inspector appointed by the Secretary of State for Communities and Local Government ("the Secretary of State") refusing Mr Lushey Stanley ("the claimant"), who is a Romany gypsy, temporary planning permission for the change of use of land at Bramble Farm, Staplecross Road, Ewhurst, East Sussex ("the land") from agricultural use to "residential and mobile home for a gypsy family". There is no challenge to the decision of the Inspector refusing the claimant permanent planning permission.

II Background

2. The land is a 7.6 ha site, which is in open countryside within the High Weald Area of Outstanding Natural Beauty ("AONB"). It is therefore in a location where restrictive national and local policies apply to new residential development. The claimant moved onto the land in about March 2006 and has used it for agricultural purposes.
3. On 21 April 2006, the claimant applied for planning permission to station a mobile home on the land for an agricultural worker. The application was refused by the Second Defendant by a Notice dated 26 June 2006 and the claimant's appeal to the Planning Inspectorate under s.78 of the 1990 Act was dismissed by a decision letter dated 9 May 2007.
4. On 25 August 2007, the claimant applied for planning permission for a change of use of the south eastern corner of the land ("the Appeal Site") to allow the residential stationing of one mobile home for the claimant and his family, which comprises of his wife and four children, who were aged between 9 and 15 years of age.
5. The second defendant refused the application by Notice dated 11 October 2007. The claimant appealed to the Planning Inspectorate under s.78 of the 1990 Act. The appeal was heard on 12 February 2008. The Inspector also conducted a site visit before producing the Decision Letter ("DL"), which is the subject of the present application.

III The Inspector's Decision

6. The Inspector considered that the main issues were:-

"The effect of the proposal on the character and appearance of the countryside which is within the High Weald Area of Outstanding Natural Beauty (AONB); and - Whether any harm identified is outweighed by any other consideration." [DL2]

7. The Inspector described the history of the claimant's use of the Appeal Site and the claimant's background noting that:-

"5…this year [the claimant] would hope to travel for about 4-5 months taking his boys with him for some of the time".

8. The Inspector accepted that the claimant and his family were gypsies for the purposes of planning policy (as defined in Circular 01/2006) and that "therefore relevant national and local policies regarding gypsies should be applied". He also listed the applicable local policies, which were Policies S1, EN2 and EN3 of the East Sussex and Brighton and Hove Structure Plan 1991 – 2011 and Policies GD1 and HG6 of the Rother District Local Plan.
9. The Inspector assessed the character and appearance of the Appeal Site and the changes made to it by the claimant and his family [DL7 - DL12] as well as noting the effect of the national policy guidance in PPS7 [DL10]. His conclusion on this issue is that:-

"12. I therefore find that the character and appearance of the countryside which is within the AONB is harmed. The proposal conflicts with Policy HG6 of the Rother District Local Plan which is concerned with gypsy sites as it has an adverse impact on the AONB. For the same reason it also falls foul of Policies S1(j), EN2 and EN3 of the East Sussex and Brighton & Hove Structure Plan 1991-2011 and Policy GD1(v) of the Local Plan."

10. The Inspector then assessed the general need for and provision of gypsy sites both in the immediate area [DL13 - DL14] and more widely [DL15]. He described the Gypsy and Traveller Accommodation Assessment ("GTAA") for the area and the fact that the South East England Regional Assembly was "about to consult on three possible options for permanent site provision" [DL16]. He noted that:-

"17 Once the process of assessing need and distributing the sites between the Districts is completed the Council intends to prepare its gypsy and traveller site allocations Development Plan Document (DPD)"

11. The Inspector stated the significant factor that there was an additional difficulty in site provision caused by the fact that 80% of the District was within the AONB [DL18]. His conclusion on this issue was that :-

"19. To sum up, the small general need for sites within the District is being addressed albeit slowly. Because the scale of the problem is not large I give this matter limited weight. However, the proposal would go some way towards meeting existing needs in the region. The importance to be given to this point is tempered by the fact that it could be put forward in every gypsy case given the aim to promote site provision through the planning system. I therefore give this argument less than moderate weight in deciding the appeal."

12. He considered the alternatives to residential use of the Appeal Site in detail before concluding that:-

"27. The position is therefore that the appellant and his family need a caravan site although it is not essential for it to be within Rother. There is no evidence to suggest that they could move onto a public site. However, from the limited information before me, I would not rule out the prospect of finding a site outside the AONB. As this possibility has not been investigated it may be that a better alternative could be found. In the absence of specific site allocations there is no certainty about this but I nevertheless give the accommodation needs of the Stanley family limited weight in this appeal."

13. The Inspector then considered the claimant and his family's personal circumstances including the education of his children [DL28 - DL29] and the health of his wife and youngest daughter [DL30]. He considered the harm to the AONB [DL32], the general need for gypsy site provision [DL33] and the personal circumstances of the claimant and his family [DL33 - DL34].
14. The possibility of a temporary permission was considered but rejected by the Inspector [DL35 - DL36] and he concluded that:-

"37. Taking into account all material considerations, including the grant of a temporary permission, I am satisfied that the legitimate aim of protecting the AONB can only be adequately safeguarded by the refusal of permission. The protection of the public interest cannot be achieved by means which are less interfering of the appellant's rights. They are proportionate and necessary in the circumstances and hence would not result in a violation of his rights under Article 8 of the European Convention on Human Rights."

IV Circular 01/2006 – Planning for Gypsy and Traveller Caravan Sites

15. The current Government guidance on gypsy and traveller caravan sites is contained in the ODPM Circular 01/2006 ("the 2006 Circular") and its main purposes as set out in paragraph 12 are :-

"(a) to create and support sustainable, respectful, and inclusive communities where gypsies and travellers have fair access to suitable accommodation, education, health and welfare provision; where there is mutual respect and consideration between all communities for the rights and responsibilities of each community and individual; and where there is respect between individuals and communities towards the environments in which they live and work;

(b) to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular;

(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;

(d) to recognise, protect and facilitate the traditional travelling way of life of gypsies and travellers, whilst respecting the interests of the settled community;

(e) to underline the importance of assessing needs at regional and sub regional level and for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively;

(f) to identify and make provision for the resultant land and accommodation requirements;

(g) to ensure that DPDs include fair, realistic and inclusive policies and to ensure identified need is dealt with fairly and effectively;

(h) to promote more private 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; and

(i) to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to."

16. Paragraphs 45 and 46 of the 2006 Circular provide that:-

"45. Advice on the use of temporary permissions is contained in paragraphs 108-113 of DoE 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"

V The Issues

17. Mr Marc Willers counsel for the claimant does not challenge the procedure adopted by the Inspector but he contends that the decision should be quashed because:-

a. although both parties had considered that a temporary planning permission of three years would be reasonable, the Inspector having indicated that he was not confident that the gypsy sites would become available by 2011, in those circumstances should have gone on to consider whether there was a realistic expectation that new sites would be likely to become available within some other period of time and if so to consider whether temporary planning permission should be granted for that period (Issue A);

b. the Inspector failed to take account of other important issues such as the risk that the claimant and his family would be left with nowhere to station their caravans, that they would have to resort to a roadside existence, that the claimant's chances of finding more suitable sites would be affected by the lack of site-specific DPDs in both Rother and the other Boroughs and Districts and that the education of the claimant's children would be bound to suffer if they were forced to live on the roadside (Issue B); and

c. the Inspector failed to give a proper, intelligent and adequate explanation for his conclusion that temporary planning permission should be refused (Issue C).

VI Issue A

18. As this issue requires consideration of paragraph 45 of the 2006 Circular, it seems that the local planning authority is only obliged to give consideration to granting a temporary permission for a particular period if affirmative answers are given to three questions which are:-

(a) is there an unmet need for sites for gypsies and travellers in the area concerned?

(b) are there no available sites for gypsies and travellers in the area concerned? and

(c) is there a reasonable expectation that new sites are likely to become available at the end of the particular period?

19. In paragraph 35 of the decision letter, the Inspector noted that both parties to the appeal considered that a temporary planning permission of three years would be reasonable on the basis that the council expected that a site allocation DPD would be adopted by 2011. The Inspector indicated that he was not confident that sites would become available by 2011 because:-

"17. Once the process of assessing need and distributing the sites required between the districts is completed the council intends to prepare its gypsy and traveller site allocations Development Plan Document ("DPD"). It is expected that this will be submitted in 2010 and adopted the following year. However, there are a good many stages to go through before that point is reached and with the best will in the world I anticipate that some slippage could occur. In any case, sites are unlikely to be capable of occupation immediately the DPD is adopted".

20. The Inspector then went on to say that 80% of the district lay within the AONB which meant that the search for sites is initially likely to be focused around the edge of Bexhill-on-Sea and the eastern part of Rother towards Rye. He noted that:-

"18. Furthermore, 80% of the district is within the AONB. This means that the search for sites is initially likely to be focused around the edge of Bexhill-on-Sea and the eastern part of Rother towards Rye. At this moment in time the Council has not given any formal consideration to possible locations for sites bearing in mind the constraint of the landscape designation. My impression is therefore that the Council accepts the need to play its part in addressing the current under provision of sites. There is also some "light at the end of the tunnel" in terms of identifying sites for gypsies and travellers but it is somewhat distant and faint".

21. The complaint of Mr Willers is that the Inspector was bound in accordance with the 2006 Circular and his duty to act compatibly with the European Convention on Human Rights ("ECHR") to consider whether there was a reasonable expectation that new sites would be likely to become available within some other period of time and if so, to consider whether temporary planning permission should be granted for that period.
22. In my view, the reasoning of the Inspector shows clearly that it was not possible to anticipate when other sites would become available. So in the words of paragraph 45 of the 2006 Circular there was no "reasonable expectation that new sites are likely to become available" for the foreseeable future in the area which would meet that need. In other words, question (c) which I set out in paragraph 18 cannot be answered in the affirmative and so the obligation to consider granting a temporary permission to the claimant has not been triggered. Thus the Inspector would have been unable to fix any period when there would be a reasonable expectation that new sites would become available. This was a conclusion open to the Inspector and so I am unable to accept the complaint of Mr Willers.
23. In any event it is noteworthy that paragraph 45 of the 2006 Circular explains that where there is a reasonable expectation that new sites are likely to become available at the end of a period, "local planning authorities should give consideration to granting a temporary permission". So the Inspector was not obliged to grant temporary permission but merely to consider granting it.
24. In this case there were powerful arguments against exercising any discretion to give temporary planning permission because the Inspector had found first that the visual effect on the AONB is harmful, second that the claimant's proposal was contrary to the development plan policies that seek to protect the landscape quality and third that the 2006 Circular advises that in AONB planning permission for gypsy sites should only be granted where the objectives of designation will not be compromised by the development which was not the case in front of the Inspector.
25. In his role as the designated fact-finder, the Inspector found that "there are powerful objections to the proposal" (DL 32) and "that allowing a period of grace in my decision would send out a mixed message and undermine the finding that this is an unacceptable location for a gypsy site" (DL36). These were conclusions open to the Inspector.
26. These factors show clearly why the Inspector cannot be criticised for failing to consider different periods for which temporary permission should be granted to the claimant.

VII Issue B

27. Mr Willers contends that in circumstances where the Inspector failed to consider whether to grant the claimant temporary planning permission for a longer period than three years he erred by failing to take account of considerations such as:-

a. the very real risk that the claimant and his family could be left with nowhere to lawfully station their caravans and they would have to resort to a roadside existence;

b. the claimant's chances of finding another more acceptable site would clearly be affected by the lack of site specific DPDs in both Rother and the other boroughs and districts in the region; and that

c. the education of the claimant's children would be bound to suffer if they were forced to live on the roadside.

28. In his decision the Inspector accepted that "my decision could set in motion a chain of events which culminate in the appellant and his family having to leave Bramble Farm" (DL20) although he noted that the council had indicated that a long period of compliance would usually be allowed.
29. The Inspector then carried out a detailed consideration of alternative site provisions both within Rother and further afield before concluding that:-

"27..the position is therefore that the appellant and his family need a caravan site though it is not essential for it to be within Rother. There is no evidence to suggest that they could move onto a public site. However, from the limited information before me, I would not rule out the prospect of finding a site outside the AONB. As this possibility has not been investigated it may be that a better alternative could be found. In the absence of specific site allocations there is no certainty about this but I nevertheless give the accommodation needs of the Stanley family limited weight in this appeal".

30. I agree with Mr Coppel that these were matters of planning judgement for the Inspector who gave carefully reasoned conclusions in the light of the evidence that he heard. Indeed he was, as he explained in paragraph 37 of the decision letter, conscious of the impact of his decision and that included considering human rights issues.
31. Furthermore, the Inspector did specifically take account of the educational needs of the claimant's children and he noted in his final balancing exercise that:-

"34. Dismissal of the appeal would, in all likelihood, require the appellant and his family to eventually vacate the site which has to be regarded as their home without any certainty of suitable alternative accommodation being readily available".

32. In my view there is no basis for this complaint of the claimant. Again if I had been in any doubt about it I would have reached the same conclusion because of the strength of the case for the reasons which I have explained in paragraph 24 above.

VIII Issue C

33. It is submitted by Mr. Willers that the Inspector failed to give proper, intelligent and adequate explanation for his conclusion that temporary planning permission should be refused. In particular it is said that he gave no proper explanation why he could not grant temporary permission for a period exceeding three years.
34. I agree with Mr Coppel that a fair reading of the Decision Letter showed that the reason why the Inspector could not grant a temporary permission for a period exceeding three years was the uncertainty of when it would be possible to identify sites for gypsies and travellers which he described as " somewhat distant and faint" as well as the unacceptable harm to the AONB. So question (c) which I set out in paragraph 18 cannot be answered in the affirmative and so the obligation to consider granting a temporary permission to the claimant has not been triggered. As I have explained, the Inspector was not required to give express consideration to granting temporary permission for a period exceeding three years.
35. In any event, the Inspector was quite entitled to conclude as he did that "the legitimate aim of protecting the AONB can only be adequately safeguarded by the refusal of permission" (DL37) because of firstly the harm to the AONB would be greater for a longer period of temporary permission and secondly the uncertainty of when gypsy sites can be identified through the DPD process.
36. Insofar as the complaint is made that the Inspector failed to give proper reasons for refusing a temporary permission for a period of less than three years the Inspector was entitled to take into consideration the fact that "the Council would be able to take account of [allowing time for other arrangements to be made] in setting the time for compliance with any enforcement notice" (DL36). In addition he was entitled to conclude that "allowing a period of grace in my decision would send out a mixed message and undermine the finding that this is an unacceptable location for a gypsy site" (DL36).
37. It must not be forgotten that these were matters of planning judgement which were for the Inspector to determine after hearing the evidence. Bearing in mind the substantial harm to the AONB of the development the Inspector was entitled to conclude that a temporary permission for a period shorter than three years would be inappropriate.
38. A further reason why this argument must be rejected is that the Inspector was entitled to conclude that "the protection of the public interest [the protection of the AONB] cannot be achieved by means which are less interfering of the appellant's rights" (DL37).
39. Having read carefully the decision letter I am quite satisfied that the Inspector gave perfectly adequate reasons and no justifiable complaint can be made.

IX .Conclusion

40. This application must be dismissed.