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Cite as: [2010] EWHC 701 (Admin)

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		Neutral Citation Number: [2010] EWHC 701 (Admin)
		Case No: CO/13770/2009

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

Royal Courts of Justice
Strand, London, WC2A 2LL

30/03/2010

B e f o r e :

MR JUSTICE BLAIR
____________________

Between:

	SMARDEN PARISH COUNCIL	Claimant
	- and -
	SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT - and - JOHN LAWSON'S CIRCUS	First Defendant Second Defendant

____________________

Mr Alun Jones QC and Mr Juan Lopez (instructed by Messrs Morlings) for the Claimant
Mr Jonathan Auburn (instructed by the Treasury Solicitor) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing dates: 24, 26 March 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Blair :

This is an application under s. 288 Town and Country Planning Act 1990. The Claimant is Smarden Parish Council, Smarden being a small village in Kent, located just outside Ashford. The case relates to part of a large field acquired by the Second Defendant, John Lawson's Circus in 1995. The field is about one kilometre from the village, and lies within the Low Weald Special Landscape Area. Mr Lawson wants to use the land as winter quarters for his travelling circus. This has been described as a small traditional family circus that visits small towns in the area during the March to October season. Smarden however maintains that the site is manifestly unsuitable for this purpose. Its views accord with those of the local planning authority, which is Ashford Borough Council. An application by Mr Lawson for planning permission was refused in 2005, and his appeal dismissed in 2006. A further application was refused in 2008, and his appeal dismissed later that year. However in 2009, Mr Lawson applied again, and an appeal against that refusal was allowed by a third Inspector on 7 October 2009. That is the decision which is the subject of this application.

The Facts

Prior to Mr Lawson's acquisition of the site, planning permission had been refused on two occasions for the stationing of a caravan on the site, though temporary permission was later granted. In 1993, permission for two stables on the site was refused, and in 1994 an application to make the temporary permission in respect of the caravan permanent was refused, and an appeal dismissed. In January 1997, having by then acquired the site, Mr Lawson made a retrospective application for change of use for showman's winter quarters. That was refused, and in January 1998 an enforcement notice was issued followed by a High Court injunction granted on 23 February 1999. Two further applications appear to have been made in 2000, and in November 2003, the site was again reoccupied by the circus. The Council sought a further injunction in February 2004, and pursuant to an undertaking, all caravans, vehicles and circus equipment were removed from the land by April of that year.

On 15 June 2005, Mr Lawson applied for permission to change the use of the land and buildings for travelling show people's quarters. That application was refused by Ashford Borough Council on 23 August 2005. The appeal was dismissed by the Inspector on 5 October 2006, his decision being the first to which my attention has been drawn. It is common ground that the three decisions culminating in the decision the subject of the current application need (at least for the purposes of determining this application) to be read together. For that reason, I shall set out them out in some detail before coming to the 2009 decision.

The 2006 Inspector records that the appeal site comprises 0.4 hectares of former agricultural land forming part of a larger field located in countryside to the southwest of the village of Smarden within the Low Weald Special Landscape Area (SLA). There is a small former agricultural building close to the site entrance, currently used for storage purposes by Mr Lawson, behind which is a gravelled area and concrete hard-standing where a mobile home was once sited. He records that planning permission is sought for the use of the land as quarters for Mr Lawson's travelling circus. A maximum of four caravans would be positioned, as well as five vans, a mobile generator and two trailers. The circus, the Inspector records, is on the road from mid-February to mid-October and return trips to the site during that period were not anticipated. The existing field entrance would be replaced with a new site access to the immediate west.

The Inspector states that although not in an area of outstanding natural beauty, or a conservation area, the area around the appeal site is nevertheless attractive and sensitive in landscape terms. It is characterised by relatively low lying open agricultural land and tall hedgerows. Removal of a substantial proportion of the roadside hedgerow would be required to accommodate the proposed vehicular access. The caravans would be clearly visible from the public highway. The Inspector concludes that the caravans, vehicles and general paraphernalia associated with the Circus would be likely to have an adverse visual effect on views of the site during the winter months, and would be harmful to the character and appearance of the countryside and the landscape quality of the SLA. The Inspector notes that the general shortage of sites for travelling showpeople in the southeast of England is well documented, and that Mr Lawson has provided substantial evidence that such problems persist in the county of Kent. He says that, "…"The Appellant's business is well established and highly reputable and that his most recent winter quarters at Shadoxhurst are far from adequate, lacking sufficient space, basic services, adequate hardstanding areas and security of tenure. I do not therefore question the need for a more suitable, alternative site in this case or that, given the families' ties to the area, this should be in the vicinity of Ashford." As Mr Alun Jones QC for Smarden made clear, this basic finding as to the needs of Mr Lawson and his circus is not in dispute.

The Inspector said that he accepted the likelihood that in view of land prices and the need to accommodate animals, facilities of this kind would almost always be sited outside built confines on land with grazing facilities and limited development potential. He reports that Ashford Borough Council has not allocated a site for travelling show people in its local plan and has provided Mr Lawson with little assistance in finding a site that would suit his requirements. However the absence of a pro-active approach by the Council in addressing his need did not itself justify environmental harm of the kind he had identified, and that Mr Lawson himself had an important role to play in exploring suitable locations. He appreciated that the field was suitable for the proposed use, but was "not convinced by the evidence before me that all reasonable courses of action defined an appropriate but less visually-prominent site have been fully pursued in this case". In the absence of such evidence, he could not be reasonably sure that a less visually important location that would fulfil all his requirements without resulting in environmental harm was not available elsewhere in the locality. For those reasons, he dismissed Mr Lawson's appeal.

The next application was dated 31 March 2008, the development proposed being a change of use of land for travelling showpeople's winter quarters and provision of new access. The application was refused, and an appeal by John Lawson's Circus was dismissed on 18 November 2008. The Inspector considered the main issues to be (as far as presently relevant) the effect of the proposal on the character and appearance of the countryside which is within the Low Weald SLA, and whether any harm would be outweighed by other material considerations including the need for sites for travelling show people and the availability of alternative sites.

In his decision, the Inspector states that the intention is to use the land as a base for the Circus during the winter months although there may be a gap in occupation if it is away for a Christmas show. During the rest of the year from about early March to the end of October the Circus would be most unlikely to return. The Inspector notes however that the applicant's mother and another family member might need to return to the site during the summer should, for example, medical care be required. The Inspector notes certain access changes to provide further screening. He also notes that since the last appeal, Circular 04/2007 "Planning for Travelling Showpeople" has come into effect. He notes that there are no local policies concerned with travelling showpeople, but that, in his view, the assessment of the effect of the proposal should be made in the context of the guidance given in this Circular which anticipates that some sites of this kind will be in the countryside. He goes on to consider the impact on the hedgerow, and concludes that even when the new hedge grows up, such a large agglomeration of caravans and vehicles would not be entirely hidden. Although Circular 04/2007 implies that some visual consequences for rural areas are likely to occur, the Inspector says, "I consider that the impact in this case would simply be too great and that the proposal would detract from the rural qualities of this part of the countryside".

Having reached that conclusion, the Inspector turns to other considerations. The first was that of need. In that regard, he concludes that there was no evidence that the position had changed since the last appeal. He refers to a study commissioned by the Council and eight other local authorities in Kent called "Northern West Kent Travelling Showpeople Study" (TSS) which was produced in 2007. This found that there was no need for additional site pitches to be made available up to 2011. This work has fed into the Partial Review of the South East Plan. Ten residential plots in total up to 2016 are proposed, although none in Ashford. The Inspector notes that in compiling the TSS no contact was made with the Association of Circus Proprietors. He notes the suggestion that in the event of an unsuccessful appeal, the applicant and his family may have to resort to staying on the roadside or leave the area, concluding that the "evidence indicates that this position has not been reached yet although the end of the road may not be far off. I therefore consider that this longstanding need for a site is now pressing".

The Inspector goes on to consider alternatives. He notes that in terms of the potential allocation of sites, the Council is awaiting the outcome of the South East Plan. However, not withstanding the last Inspector's comments, it has offered no practical assistance to the appellant in finding somewhere suitable. Though this was to an extent understandable, he regards the failure of the Council to react in any positive way as regrettable. He then turns to the appellant's efforts in this regard, saying that they appear to have commenced in earnest in January 2007. At the application stage, a schedule was produced of 42 sites that had come to light but had been rejected for various reasons. He notes that the Council accepted that the steps taken have been methodical and that the search is on-going. The evidence was that an "alternative site has been sought for the best part of two years. There is no criticism of the approach taken or any suggestion that certain sites should not have been rejected or that others should have been pursued … it is always possible to argue that sooner or later a site will turn up. That may indeed be so. However, given the particular requirements of the use, affordability, the planning implications and the efforts made so far I consider that, in general terms, finding a suitable site is not going to be easy. It could be argued that the applicant should await the completion of the DPD. However there is no certainty that a site would be allocated with his requirements in mind. If a site were identified the land would have to be acquired and the planning process negotiated thereby imposing a further delay".

The Inspector then notes that at the hearing the applicant indicated that one site had recently been identified at Crowborough which might be suitable. Securing a lease on the site at Crowborough and obtaining planning permission may not be a simple task, but the Inspector considers that "this option cannot be ruled out at this stage". In his conclusion, he says that, "in some ways it would be tempting to grant permission in order that the applicant's quest for a site is brought to an end. Set against this, development at the appeal site has largely been resisted over many years. The emergence of the Crowborough site offers "a tantalising glimmer of a possible solution. Until this has been firmly discounted, I consider that it would be wrong to sanction the appeal site given the visual harm identified. I realise that if the pursuit of this site comes to nought the applicant would be back to square one. However, that would allow a further period of search for a less visually prominent site to take place, possibly in conjunction with the Council, given that the Circus should have a base this winter.

The appealed decision

On 7 January 2009, John Lawson's Circus applied again, the development proposed being a change of use of land for a Travelling Showpeople's winter quarters and alterations of existing access. Permission was refused on 19 March 2009. John Lawson's Circus again appealed, but in contrast to the previous appeals, there was no hearing. The appeal was determined by the Inspector under the written representations procedure. No oral submissions or amplification was received by the Inspector in addition to the documentation submitted. An unaccompanied site visit was conducted by him on 25 August 2009. By a decision of 7 October 2009, he allowed the appeal.

The Inspector's decision is as follows. He describes the site in terms used in the previous decisions, saying that the intention is to use the land as a base for the Circus for the winter months. The Circus is unlikely to be on the site between March and October each year. The use would involve the stationing of four showman's vans to the rear of the building and the parking of vehicles and trailers beyond them in the rear part of the site. He notes that the last appeal was based on the same layout plan, and that both the Council and the appellant rely significantly on the evidence submitted for the appeal in 2008 and the Inspector's conclusions, updating matters primarily in relation to the availability of alternative sites. He says that he is not bound by the conclusions of the previous Inspectors but they are important material considerations, though he needs to have regard to any changes in circumstances since then. Given that the appellant did not dispute the previous conclusion that there would be harm to the character and appearance of the area, the Inspector considered that the main issue for him was whether such harm would be outweighed by other material considerations, including the appellant's need for a site and the availability of any alternatives.

As he puts it, the site is in an attractive rural location which is designated a Special Landscape Area. The landscape consists of modest sized fields bounded by hedgerows. The lowering of much of the frontage hedge and the wide new entrance and access would open up views into the site, and for the first few years it would have the harsh appearance of a yard with the showman's vans and vehicles readily visible. In the medium to long term, the proposed new planting would have a softening effect, but since it would need to be predominantly deciduous, its beneficial effect would be limited during the winter when the site was fully occupied. He considered that the proposal would significantly detract from the character and appearance of the countryside in the immediate locality.

In a paragraph which (as I shall explain) is criticised by the claimant, he states as follows:

"10 The harm to the character and appearance of the countryside results in conflict with local plan policies EN9 (to protect the setting and entrances to towns and villages) and with policy EN27 (to protect the landscape of the SLA) and conflict with policy CS1 C of the Core Strategy 2008. There is conflict with local plan policy HG7, as it does not include travelling showpeople among the limited types of residential development acceptable in the countryside, but I consider that this policy is out of step with more recent guidance in Circular 04/2007 Planning for Travelling Showpeople which makes clear that sites for travelling showpeople may acceptably be located in rural areas. Given that the Circular indicates that rural sites may in principle be acceptable, I consider that this implies that some adverse impact on rural character may be inevitable and acceptable. I also note that local landscape designations should not in themselves be used to refuse applications. The development plan policies referred to above do not reflect this realism. Nevertheless, I consider that the impact on the character and appearance of the countryside would be substantial and result in material conflict with the development plan. Given the identified conflict with policy EN9, the recent adoption of the Smarden Parish Design Statement adds nothing to the weight I attach to the harm."

The Inspector then considers other material considerations, commencing with need. Contrary to the position as understood in 2008, the appellant would be able to spend that winter at the farm at Shadoxhurst but the owners were not able to offer him a long term lease. The Inspector considered that the pressing need for a site in the vicinity of Ashford weighed in favour of the appeal. He then proceeded to consider alternative sites, and since much of the argument has turned upon his reasoning in that regard, I set out the relevant parts of the decision:

"13 Firstly, since the last appeal no party has identified any site which, either in the vicinity of Ashford or further afield, is or is likely to be suitable and available to the appellant and where the appellant's occupation would be lawful – a site with planning permission for travelling showpeople. Nor are there any sites allocated in a development plan for such a use where there would be good prospects of planning permission being obtained quickly. This lack of any such alternative site must be seen in the context of a need for additional sites for travelling showpeople within the region and nationally as highlighted in Circular 04/2007. The submitted Partial Review of the South East Plan (PRSEP) for the provision of new pitches for Gypsies, Travellers and Travelling Showpeople identifies a requirement in the South East for 302 pitches for travelling showpeople between 2006 of 2016. Of these, 28 are allocated to Kent Districts (and Medway) of which 3 are allocated to Ashford Borough.

14 Secondly, Circular 04/2007 places the emphasis on a plan-led system for the identification of needed additional sites. Local Planning authorities should be taking the lead in identifying the needed sites. However, this will only occur where Councils recognise a local need or are required to provide sites through the RSS Partial Review. The GTAA which covered Ashford did not identify the needs of the appellant and the previous Inspector found some shortcomings in this study. Despite the clear conclusion on local need by the Inspectors in 2006 and 2008, the Council does not seem to accept that there is a local need for which they should be taking positive steps to meet. The Council is contesting the allocation to Ashford Borough of the 3 pitches for travelling showpeople made in the PRSEP. This plan is unlikely to be confirmed by the Secretary of State until 2011.

15 I have little information on how the Council might implement any requirement that arises from the PRSEP and there is no criteria based policy in the adopted Core Strategy for the allocation of sites for travelling showpeople in a subsequent Development Plan Document (DPD). There is reference to the Council's intention to produce a DPD that deals specifically with provision for gypsies and traveller in the Borough. I note that this does not, on it face, include travelling showpeople. It may be very difficult to allocate any such site required by the PRSEP at a late stage in the progression of DPD dealing only with travellers and gypsies or any other allocations. I thus have no confidence that the intention of Circular 4/2007 for needs to be addressed through the plan led system will provide any assistance to the appellant in the next few years. This weighs in favour of allowing the appeal.

16 Thirdly, I turn to the site in Crowborough (Goods Yard, Jarvis Brook) which the previous Inspector thought had potential which should be explored. Since that appeal decision, the planning officer from Wealden District has stated in writing to the appellant that the amount of residential sought would be a problem and a likely obstacle to officer support. This is because of the need to retain employment land, which is in short supply in this part of Wealden. In my view, it is not unreasonable for the appellant not to have pursued this site further in the light of that advice. Whilst Wealden's Planning Committee Members could take a different view from their officers, it is unlikely that Members would support an application from the appellant against an officers' recommendation to refuse, bearing in mind that the appellant is not local to Wealden District nor the cause of any planning problem within the District which granting such an application would overcome. The site at Crowborough does not have reasonable prospects of being available for the appellant's lawful occupation. It is also not within the vicinity of Ashford. I therefore discount this site from further consideration and I see no need to speculate as to what might have satisfied the previous Inspector on this matter.

17 Finally, I turn to the evidence of other possible sites and the appellant's search for sites. The appellant has provided the lists of sites that were before the Inspector in 2008 and some further rejected sites which were identified over a short period prior to the present application being made. The appellant has rejected many sites in the past and more recently because they are in the open countryside and are likely to be subject to planning constraints. I have no details of most of these sites and I do not know whether the impact on the countryside is likely to be similar, greater or lesser than the harmful impact of the appeal site.

18 In my view, what is of particular significance is that the Council has not suggested that any of the appellant's rejected sites would be likely to receive a favourable recommendation from Council officers for the proposed use. The absence of any positive enabling policy for travelling showpeople's sites in the Ashford Core Strategy makes it very difficult for any objective assessment to be made of potential alternative sites. The appellant can do no more than they have done in identifying likely planning constraints. I have already noted that the Inspector in 2008 saw no basis to criticise the appellant's search for alternative sites. It is for the Council to suggest that any particular site in the details supplied by the appellant may be subject to favourable consideration, but it has not done so. The Council have flagged many other sites which have been on the market, but again there is no suggestion that any might gain planning permission. The Council do give particular attention to 2 potential alternative sites: land at Pluckley (suggested to the appellant by the Council's estate's department) and land at Snodhurst. Again, there is no indication that planning permission would be considered favourable, which is not surprising in relation to the Snodhurst site since it is within a different Borough.

19 The lack of any reasonable available alternative sites and the doubtful prospects of the appellant's needs being met through the development plan system over the next few years weighs substantially in favour of allowing the appeal."

Having analysed the facts in this way, the Inspector then turned to overall balancing, finding that the proposal would significantly detract from the character and appearance of the area. He accepted that the applicant had a pressing need for a permanent lawful site. He found that there were no reasonably available alternatives, and in the absence of any local policy giving realistic guidance on suitable locations for a travelling showpeople's site, saw no prospect of the applicant being able to identify such a site. He said that there was now no evidence of any realistic possibilities, that the Council had not suggested any locations where planning permission might be viewed favourably, and that he had "no confidence that the development plan system will rapidly address the needs of the applicant as a group of travelling showpeople". In the result, the factors in favour of the appeal outweighed the harm identified, and justified a permanent permission subject to conditions. He added that dismissal of the appeal would have a disproportionate effect upon the rights of the appellant under Article 8 of the European Convention on Human Rights.

He then dealt with conditions, of which two have been relevant so far as this appeal is concerned. Firstly, he considered that it would be too restrictive to limit occupation to a named individual, because the names of enterprises and companies can readily change for a variety of reasons, or the name can stay but the activity change. He thus considered that it would be ineffective to limit occupancy to John Lawson's Circus. On the other hand, limiting the use to travelling showpeople generally may encompass a much wider range of activity than specifically considered as arising from the proposal, and occupancy was limited therefore to those involved with the operation of a "travelling circus" to include those now retired from such work as well as their dependants. Although the appellant envisaged no need to return to the site during the summer, he considered that it "would be unreasonable to preclude such summer occupation. Circular 04/2007 recognises that the term "winter quarters" is now something of a "misnomer" because some family members of travelling showfamilies may stay on a site for much of the year because of their particular educational or welfare needs and I see no reason why the appellant should not have this flexibility on the permanent site for which I am giving permission".

The grounds of appeal

A challenge under s.288 Town and Country Planning Act 1990 can only be brought on the grounds of error of law, either on the basis that the decision is not within the powers of the 1990 Act (s.288(1)(b)(i)) or that there has been a failure to comply with relevant requirements (s.288(1)(b)(ii)). Four grounds are put forward in support of the application, and the arguments in support of the first two in particular have been subdivided.

Ground 1: permission for "winter quarters"

The Claimant's submissions

Smarden does not, and could not, object in principle to the provision of winter quarters for Mr Lawson's circus. Its first point, in summary, is that the Inspector enlarged the permission being sought without giving Smarden the opportunity to make representations in this respect. It submits that the "core component" of the appeal was the seeking of permission for the material change of use of land "for a Travelling Showpeople's winter quarters". Paragraph 1 of Circular 04/2007 describes "winter quarters" as to mean "bases" which are "most occupied during the winter, when many showpeople will return there with their caravans, vehicles and fairground equipment". Consistently, paragraph 2 of the Circular envisages that customary travel consonant with showpeople's businesses may well mean that "quarters" are only occupied "…for some period between the beginning of October and the end of March in the following year". The term "winter quarters", it is submitted, necessarily qualifies the general term "quarters" as regards the duration/extent of use.

The Inspector was not invited to grant permission for anything other than use of the site as "winter quarters" as specifically characterised in the application. The Planning Appeal Form completed on behalf of the appellant dated 9 April 2009 confirmed that the description of the development on appeal had not changed from that which was the subject of the original application as refused by the Council. The application and appeal were publicised by site display and serving notices in accordance with the relevant requirements. The rationale for requiring publication of an appeal, it is said, is plainly so that members of the public will know, or at least have the opportunity to know, what the appeal for planning permission is seeking. The Claimant points to the fact that the application included a Planning Supporting Statement prepared by consultants called RPS stating that, "…There is no requirement to return to the winter quarters until the middle to end October. The site would be occupied for approximately only four months in each year". The appellant's August 2008 Hearing Statement also prepared by RPS described the proposed use of the site by the appellant and the members of the appellant's family as meaning use "out of season" and "during the closed season". Notwithstanding, it is submitted, the Inspector interpreted Circular 04/2007 as producing a "misnomer". By this, it is said, the Inspector wrongly ignored the distinction maintained under the Circular between "winter quarters" and "quarters" when granting permission for the material change of use for the full 12 calendar months. He therefore erred in construing the policy in determining the appeal. His explanation in this regard was that "…some family members of travelling show families may stay on the site for much of the year because of their particular educational or welfare needs and I can see no reason why the appellant should not have this flexibility on the permanent site for which I am giving permission". Smarden says that this is an unacceptable generalisation. Alternatively, it is said that no, or no adequate, reasons have been provided to explain this aspect of the decision, and it has been substantially prejudiced thereby. Alternatively, upon granting permission for change of use over 12 calendar months, it is said that the Inspector has substantially enlarged the scope of the permission when compared with that sought on appeal, and has deprived the Claimant of the opportunity of consultation. The Inspector, it is said, neither identified nor assessed the effect of his amendment of the appeal (and by way of enlargement) in terms of prejudice. Since the Inspector did not turn his mind to this question, he has failed to take into account a relevant material consideration when determining the appeal. Alternatively, he departed from the principles of natural justice.

In oral submissions, Mr Alun Jones QC accepted that that there may have been some justification for the Inspector's finding of year round need. What went wrong, he said, was the Inspector gave consent for the whole year, when the application was for winter quarters only. As regards enlargement, the case was put rather more widely orally than in written submission. Mr Jones identified "three critical questions" in respect of which he submitted that the Inspector failed to comply with the principles of natural justice, namely:

i) whether permission should be permanent or temporary (perhaps pending developments associated with the Circular 04/2007),

ii) whether planning permission should be limited to the winter months, and

iii) whether permission should be made personal to the appellant.

The First Defendant's submissions

The First Defendant submits that this ground is misconceived. Mr Lawson has always sought to use the site for a travelling showpeople's winter quarters, as this term is commonly understood. That was the application made and that is the permission resulting from the Inspector's decision. The Claimant is now trying to put forward a different meaning to the term "winter quarters" (namely one in which there is a very strict temporal limit), which was not put forward by Mr Lawson at the time, makes no sense in practice, and is contrary to the term as commonly understood and as explained in Circular 04/07 and elsewhere.

The term "winter quarters" as it is commonly understood, it is submitted, means a permanent base for travelling showpeople, who tour in the non-winter months and return to their base during the winter months and also at other times of need. Such bases are now increasingly occupied all year round by children and elderly family members. In modern times there is an expectation that children will have a settled education and that the elderly will have an acceptable standard of care and healthcare. For these reasons the term does not import an absolute or rigid temporal condition as to occupancy. Circular 04/07 reflects this approach. The term does not imply the total abandonment of the site for the entirety of the touring season. Smarden's attempt to build into the term "winter quarters" a strict and absolute temporal restriction on occupancy is, it is submitted, unrealistically harsh as it is not feasible to demand that showpeople never return to the site during the touring season irrespective of circumstances. The Circular conveys that it is implicit in the concept of winter quarters that children and elderly members may be on site during the touring season. John Lawson's Circus made the application for planning permission on the basis of the term as commonly understood. This was necessary as the group includes young children and elderly members. The covering letter dated 14 January 2009 from RPS which enclosed the planning application, stated (for example) that "the site would be expected to be used much less intensively in the summer months (usually during the summer this is only as a base to return to in the event that sites are inaccessible due to weather conditions or where family members are unwell)". The Inspector's decision simply granted that which had been applied for, namely a travelling showpeople's winter quarters as that term is commonly and sensibly understood, and did not expand the nature of the use. There was no breach of natural justice, because it was always known that there would be some use of the site during the touring season.

Further, the First Defendant points out that by email of 28 August 2009 to RPS and Ashford Borough Council (it was not sent to Smarden), the Inspector invited submissions on the nature of the conditions. Both responded, Ashford submitting that since use of the site takes place within the winter months when screening would be less effective, a temporary permission would leave the site very open and very visible in the landscape. If permanent permission was granted, the Council said, there should be a permission made personal to Lawson's Circus and the use limited to between the months of October and March.

Discussion and conclusions on Ground 1

It is important, in my view, not to elide the concept of a permanent base used as winter quarters, and a permanent base used as such the year round. This application was not made on such an expansive basis. The material put before the 2009 Inspector, as Smarden submits, makes the limited use of the site clear. Furthermore, the 2006 and 2008 decisions both make plain that those appeals related to winter use, with only limited use for the rest of the year. The 2009 appeal was put by the appellant, and accepted by the Inspector, on the basis that the Circus would be touring during the summer, only returning during the winter months. It would be unfortunate, and in my view entirely contrary to the permission granted, if the Second Defendant were to regard this as permission to use the site in some further or other way. However, so far as I am aware there is no suggestion from him that he does so. In any case, I am satisfied that the Inspector did not enlarge the permission sought in this respect. The appellant had made it clear that the need for use outside the winter months had to do with the position of children and elderly relatives. The Inspector records expressly in paragraph 3 of the decision that the intention is to use the land as a base for the Circus for the winter months, and it is unlikely to be on the site between March and October each year. Having granted permission for the change of the use of the land for a travelling showpeople's winter quarters, he went on to consider the question of conditions. He limited occupation to a travelling circus (and the term "travelling" will be noted) but concluded that it would be unreasonable to preclude summer occupation. In saying that the term "winter quarters" is now something of a "misnomer", he made reference to Circular 04/2007. In fact, that circular makes it clear that the term retains a distinctive meaning. Paragraph 1 says that, "Such bases are most occupied during the winter and for that reason the sites have been traditionally referred to as winter quarters". It states that, "increasingly showpeople's quarters are occupied by some members of the family permanently", but goes on to explain this by saying that, "Older family members may stay on site for most of the year and there are plainly advantages in children living there all year to benefit from uninterrupted education". That appears to have been the approach the Inspector adopted. In my view, he granted what had been applied for, and did not expand permission in this respect. It follows that there was no breach of natural justice so far as Smarden is concerned, since it was aware of the terms of the application.

As regards the additional points raised by Smarden in oral argument, the question whether permission (if the appeal were allowed) would be temporary or permanent was bound to arise, and I see no error of law in the Inspector's conclusions in this respect. I have however been more troubled by his decision not to make permission personal to John Lawson's Circus. Whilst he raised this issue in his email of 28 August 2009, this only went to the parties to the appeal. He reasonably pointed out in his decision that the names of enterprises and companies can readily change for a variety of reasons, or the name can stay the same but the activity being conducted can change. That is of course correct, but the case on need, which was a central aspect of the appeal, was predicated upon the appellant's personal circumstances. Having said that, the Inspector then balanced his approach by limiting occupancy to those involved with the operation of a travelling circus, as opposed to travelling showpeople generally, which was the subject of the application. Smarden points out that, with the benefit of this permission, the site may now be sold to an entirely different entity, which has no need to occupy the site, but chooses to do so on grounds (for example) of cost. But it seems to me that the practical effect of this possibility has to be viewed in the light of the condition limiting the number of caravans to four on site at any time. Any successor circus would be similarly small. Taken as a whole, the Inspector was plainly concerned to impose conditions which were reasonably, but not unduly, restrictive. In substance, it does not appear to me that there was an error of law on his part, or a breach of natural justice in the way in which he dealt with any aspect of the matter. So far as criticism is made of his reasons, they were in my view intelligible and adequate (South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 (HL), at [35] per Lord Brown).

Ground 2: the Development Plan

The Claimant's submissions

The second ground is to do with the extent to which the Inspector took account of relevant planning policies. It is submitted that since the Inspector had to identify the degree of planning harm for himself, and not merely adopt the previous decisions in this respect, it was necessary for him to first identify and apply all relevant planning policies then forming part of the statutory development plan. The Inspector determining the 2008 appeal considered and applied policy GP12 of the local plan as a relevant material consideration when considering the impact of the proposal on the countryside and landscape. Policy GP12 remained a saved policy at the date of the Inspector's determination of the appeal in 2009. The case officer in assessing the planning application correctly included policy GP12 as a material consideration in the assessment sheet. Consistently, the decision notice issued by the Council dated 13 March 2009 cited policy GP12 as part of its decision to refuse permission. Policy GP12 advises:

"To protect the countryside for its own sake, for its landscape and scenic value and for the important wildlife habitats it contains, and to respond to the need for carefully managed change to accommodate demands for agricultural diversification, tourism and public access to the countryside".

Plainly, policy GP12 goes to the heart of the prominence of the Site as a designated SLA. In failing to consider policy GP12, it is submitted that the Inspector failed to take into account a material consideration highly relevant to the appeal. It was essential for the Inspector to have regard to this policy in particular given his resolve to grapple competently with the degree of harm, and in policy terms, independently from the previous Inspectors. The Inspector has advanced no or no adequate reasons as to why he might be justified in overlooking policy GP12.

The First Defendant's submissions

The First Defendant submits that the Inspector does not need to expressly refer to each of the individual policies that go to make up the development plan. Further, policy GP12 did not require separate express treatment by the Inspector because: (1) in this particular case the impact on the character of the countryside and conflict with the development plan policies for the countryside was not a principal controversial issue the Inspector had to resolve. The Second Defendant was not contesting the previous Inspector's finding that there would be harm to the character and appearance of the countryside and conflict with the development plan policies for the countryside. (2) It is clear that the Inspector was agreeing with the previous 2008 Inspector's conclusion on harm, and that Inspector had expressly considered Policy GP12. (3) In any event GP12 is a "Guiding Principles" Policy in the local plan. There is a more recent and more comprehensive policy in the Core Strategy entitled "Guiding Principles". This is Policy CS1 of the Core Strategy. Policy CS1 is a comprehensive policy and there is little in GP12 that is not covered in CS1. For example, paragraph C of this policy states "protection for the countryside, landscape and villages from adverse impacts of growth and the promotion of strong rural communities". The Inspector expressly referred to Policy CS1.

Discussions and conclusions on Ground 2

An Inspector's decision letter does not need to refer to each of the individual policies in the development plan: see R (Cummins) v. Camden LBC [2001] EWHC 1116 (Admin), paragraphs 159-163, (Ouseley J) agreeing with R v. Rochdale MBC ex parte Milne, unreported 31st July 2000, paragraphs 48 to 49 (Sullivan J). It is accord with the plan as a whole that is relevant, not with each individual policy within the plan. On that basis, as Mr Auburn for the First Defendant put it in oral argument, what point of substance did the Inspector leave out? There was none in my judgment. Policy CS1 essentially covers the same matters as GP12. Mr Jones did not press this ground in oral argument, and for the reasons given by the First Defendant (with which I agree) I reject it.

Ground 3: Special Landscape Area designation

As I have said, the site lies within the Low Weald Special Landscape Area, and the third ground has to do with the respective weight which the Inspector gave to Circular 04/2007 as against the relevant local plan policies. The Inspector concluded that the development was in conflict with relevant local plan policies, stating:

"I also note that local landscape designations should not in themselves be used to refuse applications. The development plan policies referred to above [EN9, EN27, CS1 C, HG7] do not reflect this realism. Nevertheless I consider that the impact on the character and appearance of the countryside would be substantial and result in material conflict with the development plan…"

Smarden submits that this approach is illogical given that each of the relevant policies (including policy GP12) requires the decision-maker to observe the special character and appearance of the area, and to assess the planning harm and policy conflict. There can be no suggestion that the basic requirement of these policies failed to 'reflect' any 'reality' or that the policies were somehow incongruous with the Circular.

This ground was not pressed by Mr Jones QC in oral argument either, and I reject it. In South Cambridgeshire DC v SSCLG and Brown [2008] EWCA Civ 1010 at [36], Scott Baker LJ said that, "In my judgment the law is clear. The position is governed by s 38(6) of the 2004 Act. The Development Plan is determinative unless material considerations indicate otherwise". It is common ground in this case that for these purposes, Circular 04/2007 falls to be treated as a material consideration. It does not appear to me that the Inspector was departing from this approach.

Ground 4: Alternative Sites

The Inspector considered that the main issue he had to decide was whether the harm to the character and appearance of the countryside entailed in allowing the appeal would be outweighed by other material considerations, including the appellant's need for a site and the availability of any alternatives. A similar approach had been taken by the Inspector in the 2008 appeal, and I do not understand it to be challenged. Need was not in dispute, but the availability of alternatives was in dispute. Smarden's overarching point in this regard is that the Inspector based his conclusion on the finding of the previous Inspector who found no basis upon which to criticise the appellant's search for alternative sites, and that such a conclusion was inadequate and could not be determinative on the 2009 appeal as to whether the applicant's search was satisfactory and supported by evidence. It is further said that he approached his task applying the wrong legal test. As it has been advanced, the submission contains a number of discreet elements, but before considering them I should state my views as to the approach to the issue of alternative sites in a case such as the present.

The First Defendant has submitted that the correct approach is to be found in the decision of the Court of Appeal in South Cambridgeshire DC v SSCLG and Brown [2008] EWCA Civ 1010. That case had some factual similarities to the present case in that the Inspector had allowed an appeal by a gypsy family to station caravans on rural land though that was not in accordance with the Development Plan and would cause harm to the character and appearance of the local area. In that case, as in the present, such harm was held to be outweighed by other material considerations. The Council's appeal under s.288 Town and Country Planning Act 1990 was rejected by Keith J. Permission to appeal was granted by Hallett LJ on the question whether Keith J was correct in stating that, "In seeking to determine the availability of alternative sites for residential gypsy use, there is no requirement in planning policy or case law for an applicant to prove that no other sites are available or that particular needs could not be met from another site." The subject matter of the appeal was therefore a very narrow point (see at [7]).

I begin by noting out the approach of the Inspector in that case (as set out at [24] of the judgment of the Court of Appeal):

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

A similar approach was taken by Keith J at first instance, who said at [2007] EWHC 2117 (Admin) at [39]:

"S.38(6) of the 2004 Act required the inspector to conduct a balancing exercise. That involved first determining whether there were material considerations which might suggest that the development should be allowed even though it conflicted with the provisions of the development plan. If the evidence revealed the existence of one or more such material considerations, the inspector then had to conduct a balancing exercise and decide whether those considerations in fact outweighed the provisions of the development plan and the harm which would be caused if the development was allowed to proceed. I see no basis for saying that if one of those material considerations is said to be the non-availability of a suitable alternative site it is for the Appellant for planning permission to prove such non-availability. As with any other material consideration, the question is whether the evidence which the parties have chosen to call reveals the existence or non-existence of another site which would meet the needs of the Applicant for planning permission. In these circumstances, I do not believe that the inspector's approach to the burden of proof was flawed".

This decision was upheld on appeal. At [36] (from part of which I have already quoted), Scott Baker LJ, after reviewing the relevant case-law, summarised the law as follows.

"In my judgment the law is clear. The position is governed by s 38(6) of the 2004 Act. The Development Plan is determinative unless material considerations indicate otherwise. There is no burden of proof on anyone. It is a matter for the planning authority, or in this case the inspector, to decide what are the material considerations and, having done so, to give each of them such weight as she considered appropriate. That, so it seems to me, is a matter of planning judgment."

At [37], Scott Baker LJ accepted the Secretary of State's submission that, "The inspector was correct in her analysis …. Planning applications must be decided in accordance with the Development Plan unless material considerations indicate otherwise. The weight to be given to a material consideration is for the decision maker."

For Smarden, Mr Jones QC submitted that it was a material consideration for the Inspector to conclude that, where no available alternative site could be identified on appeal—as was his finding—the appellant had nevertheless failed to establish in evidence that he had carried out any proper investigation of all other potential sites. Reliance was placed on Langley Park School for Girls v London Borough of Bromley [2009] EWCA 734, per Sullivan LJ at [52]:

"There is no "one size fits all" rule. The starting point must be the extent of the harm in planning terms (conflict with policy etc.) that would be caused by the application. If little or no harm would be caused by granting permission there would be no need to consider whether the harm (or the lack of it) might be avoided. The less the harm the more likely it would be (all other things being equal) that the local planning authority would need to be thoroughly persuaded of the merits of avoiding or reducing it by adopting an alternative scheme. At the other end of the spectrum, if a local planning authority considered that a proposed development would do really serious harm it would be entitled to refuse planning permission if it had not been persuaded by the applicant that there was no possibility, whether by adopting an alternative scheme, or otherwise, of avoiding or reducing that harm."