England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		8 December 2011

1. THE DEPUTY JUDGE: This is an application by Mrs Ann Medhurst made under Section 288 of the Town and Country Planning Act 1990, seeking to quash a decision of a Planning Inspector. The Inspector dismissed an appeal against the refusal of planning permission for change of use of land from use for grazing to use for stationing one mobile home and four touring caravans with associated hard standing, connection to sewers and conversion of two stables to utility rooms.
2. By the time of the Inquiry, Mrs Medhurst was seeking temporary planning permission for 2 years, as appears from the proposed conditions set out in paragraph 9 of the statement of common ground for the Inquiry and paragraph 2 of the Inspector's decision. The site lies in the Green Belt, where there is a general presumption against inappropriate development.
3. The Inspector considered that the appeal raised two main issues, as appears from paragraphs 4 and 5 of his decision, where he said this:

"The first is whether the appellant and her grown up family fall within the definition of 'Gypsies and Travellers', for planning purposes. If such status is found it is necessary to consider whether permission is justified on the basis of the appellant and her family's need for a site within the Borough. The Council acknowledge that there is an unmet need for Gypsy sites in Tonbridge and Malling Borough.

5. The second issue is whether the harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by any other considerations. From the evidence at the Inquiry the following considerations are material to my decision;

(i) The impact of the development on openness of the Green Belt and the appearance of the locality.

(ii) The personal circumstances of the appellant and her family."

4. The Inspector dealt first with the question of Gypsy and Traveller status. He referred to the statutory definition of Gypsies and noted that, for the purposes of Circular 01/2006: Planning for Gypsy and Traveller Sites, Gypsies and Travellers means:

"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, but excluding members of an organised group of travelling show people or circus people travelling together as such."

5. That definition is taken from paragraph 15 of Circular 01/2006 and, as the Inspector noted in paragraph 6 of his decision, whether a person "falls within the definition is a matter of fact and degree to be applied to their way of life at the time of the determination of the appeal".
6. The Inspector then considered the evidence on this issue. He noted amongst other things that the report to the Planning Authority Committee referred to Mrs Medhurst having lived in a house in Ingoldsby Road, which she had sold in 2007 to help finance a purchase of land at Buckles Lane, which was a travelling showman's site. She lived there with her partner for some 3 to 4 years and then after that stayed with friends and her sister. The Inspector noted that the report referred to the fact that Mrs Medhurst's sons were now independent and, before their marriages and acquiring their own houses, had used their mother's house as a base for their work, mainly involving tree and garden maintenance as well as jet washing.
7. The Inspector then recounts the evidence given by Mrs Medhurst at the Inquiry. She said that she was 52 and had been born into a Romany Gypsy family. She had lived in a caravan on various sites until moving in her teens into a council house. The decision then describes her marriage and her move into a council house in Ingoldsby Road. She had three sons: George aged 34; Michael, aged 29; and Danny, aged 18. George and Michael had wives and children who lived in their respective family homes but the sons did not live with their wives. She had a daughter, Charmaine, who was aged 19, who had one child and was expecting a second. Mrs Medhurst said that she travelled daily to her mobile hot food business, which was operated on an industrial estate in the Dagenham Docks area. In cross-examination, she said she had also travelled to festivals but not to Gypsy events as part of her catering business, but now intended to give up the business owing to a serious back condition.
8. At paragraph 10, the Inspector recorded, amongst other things, that in cross-examination Mrs Medhurst acknowledged that she had lived in a council house for 26 years, and that her children had all attended local school until they were aged about 14. She dealt with her sons' families' accommodation and that of her daughter. She said the boys had travelled during the summer holidays with other members of the extended family. Mrs Medhurst also said that she considered the wives and children would rejoin their husbands and fathers if suitable accommodation was available on the appeal site, but her sons would be unlikely to return to their wives should planning permission be refused as they did not like living in houses.
9. At paragraphs 11 to 14, the Inspector set out his conclusions on the question of Gypsy and Traveller status in these terms:

"11. The question is whether the evidence points to Mrs Medhurst and her family having a nomadic lifestyle sufficient to constitute a Gypsy or Traveller for planning purposes. In my view, there is little evidence that Mrs Medhurst has followed a lifestyle that involves travelling for an economic purpose. She has spent most of her adult life in a permanent dwelling. Her recent work has primarily involved commuting to Dagenham docks. Although she had stayed at Buckles Lane with a partner, she still retained her house in Ingoldsby Road until late 2007.

12. None of the adult children of the appellant gave evidence at the Inquiry. All 3 older children have their own homes. No evidence has been submitted to suggest that the landscape work or jet washing undertaken by George and Michael involves a travelling lifestyle although it is said that they do some travelling during the summer months and also attend gypsy gatherings in connection with their business interest in horses. They have permanent homes and children and there was a suggestion that the relationships can be resumed if planning permission is granted for the appeal proposal. Although it may have been an unfair question for The Council, to put to Mrs Medhurst, I attach little weight to her response that the present estrangement of her sons from their spouses relates to their dislike of living in permanent houses.

13. It appears from the evidence that whilst Mrs Medhurst and her family have Gypsy ancestry, there is little in their housing or employment history to indicate travelling as a way of life. I consider the travelling undertaken by the boys during school holidays to be no different to that undertaken by many settled families. A mere aspiration to follow a gypsy lifestyle or nomadic habit of life is not, in my view, sufficient to make a person a gypsy for planning purposes. My finding on the evidence is that while the appellant or family members may on occasions have travelled for work purposes for some periods during the last few years, they have not an established nomadic lifestyle sufficient to fall within the Circular 01/2006 definition of "Gypsies and Travellers".

14. My conclusion on this issue clearly undermines the appellant's case that a temporary permission for 2 years is justified on the basis that the proposed Gypsy and Traveller facility at Coldharbour, Aylesford, may be available at the end of that period. I am also aware that the Kent CC Gypsy Liaison Officer has advised that the Medhurst family are not on the waiting list for a Council site."

10. The Inspector next went on to deal with the Green Belt and the impact of the development on the openness of the Green Belt and the character and appearance of the locality. He noted that the appeal site lay within the Metropolitan Green Belt and that the relevant local policy restated the presumption in national policy, that is in PPG2, against inappropriate development unless very special circumstances could be shown. The Inspector considered that the stationing of the mobile home, touring caravans and parking of vehicles conflicted with the purpose of safeguarding the Green Belt from encroachment.
11. I should say here that the application for planning permission was a retrospective application. The appellant had already moved onto the appeal site with her mobile home without first having obtained planning permission. So the Inspector could actually see what the development looked like.
12. The Inspector said that he saw the site was particularly conspicuous when viewed from the public footpaths and highway to the south, where it appeared as an isolated urban feature extending into open land and said in paragraph 18 of his decision that:

"I consider the development to be an intrusive and alien feature in the landscape which is harmful to the character and appearance of the countryside in this part of the Medway valley."

13. The Inspector then considered the personal circumstances of the appellant and her family. At paragraph 21, he stated his overall conclusions in these terms:

"21. My conclusion on the evidence is that Mrs Medhurst and her family are not Gypsies or Travellers for planning purposes and that the unauthorised residential caravan site is in conflict with Green Belt and landscape protection policies. The fact that there is an acknowledged unmet need for Gypsy sites in the Borough is not therefore a material consideration. I further conclude that Mrs Medhurst or her family members have no overriding personal needs or circumstances that justify their continued occupation of the appeal site on a permanent or temporary basis. The objections to the development in its present form in terms of its impact on openness of the Green Belt and the appearance of the landscape are substantial and cannot be overcome by granting permission subject to conditions such as those agreed by the parties in the Statement of Common Ground."

14. At paragraph 24, the Inspector dealt with the Human Rights Act 1998, and whilst recognising that the dismissal of the appeal would interfere with Mrs Medhurst's home and family life, this had to be weighed against the wider public interest. The interference pursued a legitimate aim, namely the preservation of the Green Belt from inappropriate development. The Inspector considered that no lesser steps than the cessation of the residential use and the removal of the mobile home and caravans could achieve that aim, and that the effect on the human rights of the site occupants was clearly outweighed by the wider public interest. He considered that the interference with the rights derived from Article 8 of the European Convention on Human Rights was both necessary and proportionate. In the light of all those matters the Inspector dismissed the appeal against the refusal of planning permission.
15. I turn now to this challenge. The first grounds of challenge essentially relate to the finding by the Inspector that Mrs Medhurst and her family were not Gypsies within the meaning of Circular 01/2006. They wish to be classified as Gypsies within the meaning of that Circular in order to benefit from the guidance given on planning for Gypsy and Traveller sites, in particular that given in paragraphs 45 and 46 of the Circular. These paragraphs indicate that temporary planning permission may be justified where there is unmet need and no available alternative Gypsy and Traveller sites in the area and where there is a reasonable expectation that new sites are likely to become available at the end of the period for which temporary permission is sought.
16. The definition of Gypsy for the purpose of Circular 01/2006 focuses on whether persons are of a nomadic way of life. Counsel for the parties took me through the relevant case law. For present purposes it is sufficient to note the judgment of the Court of Appeal in Wrexham CBC v National Assembly for Wales and Berry [2003] EWCA Civ 835. Among the points made in paragraph 57 of the judgment of Auld LJ are these: whether applicants for planning permission are of a "nomadic way of life" is a functional test to be applied to their way of life at the time of the determination of the appeal; the question is, are they following such a habit of life in the sense of a pattern and/or a rhythm of full-time or seasonal or other periodic travelling?; the Inspector should direct himself to the statutory and policy meaning of Gypsy and ask whether the applicants fall within that wording and in making the factual decision on whether applicants are Gypsies, the first and most important question is whether they are actually living a travelling life, whether seasonal or periodic in some other way, at the time of the determination. If they are not, then it is a matter of fact and degree whether the current absence of travelling means that they have not acquired or no longer follow a nomadic habit of life.
17. I deal first with grounds 1, 3 and 5 of the claim. In the present case, the Inspector did direct himself to the policy meaning of Gypsy, and set out in his decision paragraph 15 of Circular 01/2006, which gives the definition of Gypsy and Traveller for the purposes of the Circular. In ground 1 of her claim, Mrs Medhurst contends that the Inspector failed to take account of evidence in her witness statement to the Inquiry that, in summary:
18. (a) her sons go away for 2 to 3 days at a time and sometimes for several weeks to find work and then come back to the site;
19. (b) she did not travel as much now due to health problems but had spent a week travelling with her aunt; and also, with the help of her sons, goes to hippy fairs and festivals for a few days at a time and tagged along with someone else who has booked a hot food pitch;
20. (c) two of her sons have travelled independently for years and used her house as a base to return to; they travel for work, and that could be anywhere between Appleby and Doncaster in the north, down to Dartford, Kent, and the South Coast; and they have a regular summer circuit in the New Forest, Bournemouth, Hastings and the Folkestone area, and mostly do tree work and garden work as well as jet washing, with other family and friends;
21. (d) Mrs Medhurst also travelled to the Light & Life Mission Traveller festivals which take place all over the country.
22. In ground 3 of her claim Mrs Medhurst contends that if the Inspector did take account of those matters then the decision that she and her sons were not Gypsies within the meaning of Circular 01/2006 is an irrational one.
23. In ground 5 she contends alternatively that the Inspector has not given adequate reasons for his decision.
24. In relation to reasons, the test of what constitutes adequate reasons is set out in paragraph 36 of the judgment of Lord Brown in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 in the following terms:

"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration ... Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

25. In my judgment, the decision of the Inspector was a rational one and it was a decision he was entitled to come to on all the evidence before him. As the Inspector concluded in paragraph 13 of his decision, there was little in Mrs Medhurst's housing or employment history to indicate travelling as a way of life. She had spent most of her adult life in a permanent dwelling. Her recent work involved her commuting from her home to a site in Dagenham Docks, where she ran a mobile hot food business on an industrial estate. He accepted that there were occasions when the appellant may have travelled for work purposes for some period during the last few years -- this was the point being made in paragraph 17(b) of the claimant's skeleton -- but overall the Inspector's conclusion was that Mrs Medhurst had not established a nomadic way of life sufficient to fall within Circular 01/2006.
26. Those reasons are clear and intelligible, and the view that the Inspector took is one that on the material before him he was entitled to reach. In particular, the Inspector did consider the evidence that Mrs Medhurst gave to the Inquiry that she had also travelled to festivals as part of her catering business (see paragraph 10 of his decision). But the Inspector concluded that the occasions when the claimant had travel for work purposes for some periods during the last few years was not sufficient to establish a nomadic lifestyle within the definition within Circular 01/2006.
27. It is true that the Inspector did not specifically refer to the fact that Mrs Medhurst had travelled with her aunt for one week or that she had gone to the Light & Life Missions -- the point referred to in paragraph 17(d) of her skeleton -- but the Inspector does not have to deal with each and every piece of evidence. It is clear that his principal reasoning was that her housing and employment history did not indicate travelling as a way of life, and his finding on the evidence -- which would have included the evidence given in writing and orally -- was that Mrs Medhurst had not established a nomadic way of life.
28. Similarly, in relation to the sons, the Inspector considered that there was little in their housing or employment history to indicate travelling as a way of life for them. They had all attended the local school until the age of 14. The Inspector considered that the travelling undertaken by them as boys during the school holidays was no different than the kind of travelling undertaken by many families. There was nothing to indicate that it amounted to travelling as a way of life. Their wives and children lived in permanent homes although they did not live with their wives and children. The Inspector was satisfied that there was no evidence that the landscaping work or the jet washing work involved a travelling lifestyle. He considered the fact that they did some travelling in the summer months for work and also that they attended Gypsy gatherings in connection with their business interest in horses but his conclusion was that whilst they may have travelled for work purposes for some periods during the last few years, they did not have an established nomadic lifestyle sufficient to fall within the definition of Gypsies for the purposes Circular 01/2006.
29. Mr Willers, counsel for Mrs Medhurst, took issue in particular with the way in which the Inspector dealt with the evidence about the sons; and with the jet washing and landscape work carried out by the sons; and with the conclusions that the Inspector reached on those matters. Mr Willers took me to the proof of evidence that Mrs Medhurst put in at the time of the Inquiry and he took me in particular to paragraphs 5 and 11 of Mrs Medhurst's proof of evidence.
30. At paragraph 5, for example, she gave evidence that her sons do landscape work and tree work and that they go away for 2 to 3 days at a time, and sometimes for several weeks, to find work, then come back to the site, and most of the time it is just Mrs Medhurst and Danny, her younger son, on the site. At paragraph 11, she says:

"Two of my sons have travelled independently for several years. They only used my house and my partner's site at Buckles Lane as a base to return to ... They travel for work to anywhere between Appleby and Doncaster in the north and Dartford/Kent/South Coast in the south. They have a regular summer circuit in the New Forest, Bournemouth, Hastings, Folkestone where they stop on farmers' fields and on touring caravan sites. They often go up to the Cambridge area where we have family. They drop leaflets and get work that way. They do mostly tree and garden work, as well as jet washing with other family and friends. Last summer they also went up to Doncaster to join travellers they had met on a site in Dartford."

31. Mr Willers says either the Inspector failed to take that evidence into account or if he did take it into account he reached an irrational conclusion when he said the sons did not have a travelling way of life, or he did not give reasons for that conclusion.
32. But, in my judgment, when the decision letter is read properly and as a whole, the Inspector did consider the matters relied upon and the evidence given by Mrs Medhurst, but he reached a different qualitative conclusion as to whether those facts established a travelling lifestyle. At paragraph 12, in the second sentence, he said:

"No evidence has been submitted to suggest that the landscape work or jet washing undertaken by George and Michael involves a travelling lifestyle although it is said that they do some travelling during the summer months and also attend gypsy gatherings in connection with their business interest in horses."

33. He was saying, in my judgment, that there is no evidence that the travelling that had been undertaken amounted to a travelling lifestyle. The Inspector was not doubting the facts or the evidence that Mrs Medhurst was giving. He was not doubting her claim that they did landscape and garden work and that they went away for 2 or 3 days or for a few weeks or for the last several years they had gone away for periods of work. Indeed he noted the fact that they do some travelling in the summer months, and that seems to me to be a reference to one of the things referred to in paragraph 11 of Mrs Medhurst's evidence.
34. Again, in paragraph 13, he says that his finding on the evidence is that the family -- which must in this context mean the sons -- may on occasions have travelled for work purposes for some period during the last few years, but he did not consider that that established a nomadic lifestyle sufficient to fall with the Circular. In other words, he considered the evidence about the sons' work patterns, along with all the other matters such as housing and whether they had been at school or travelling, but he assessed the factual material differently and he concluded that the evidence given by Mrs Medhurst was not enough to establish that there was a travelling lifestyle. That, again, is a question of fact and degree, which is primarily for the Inspector to assess. There was material on which the Inspector could reasonably and legitimately reach that conclusion. He did consider the fact that the sons went away for periods to work, but he simply did not consider that the activity was such, bearing in a mind their housing and employment history as a whole, to amount to a nomadic lifestyle on the evidence before him.
35. In my judgment, therefore, grounds 1, 3 and 5 of the claim are not made out.
36. Ground 2 involved a claim that the Inspector erred in law as he reached a conclusion that had no factual basis and could not be inferred from the evidence adduced by the parties, namely that the claimant's sons had their own homes.
37. The claimant says at paragraph 24 of her skeleton that she is not pursing this ground and her counsel confirmed this morning that it was no longer alleged that the decision of the Inspector should be quashed on this ground, ground 2. Consequently, I do not need to deal with ground 2 any further.
38. Ground 4 is a complaint that there had been procedural unfairness or a breach of natural justice in that the Inspector failed to give Mrs Medhurst a fair and proper opportunity to address any concerns that he had in respect of the Gypsy status, in particular of her and her sons. The claimant points out that Regulation 16(2) of the Town and Country Planning Appeals (Determination by Inspectors)(Inquiries Procedure)(England) Rules 2000 say that at the start of the Inquiry the Inspector shall identify what in his opinion are the main issues to be considered at the Inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear. The claimant points out that the Inspector did not inform the parties to the appeal that he had any concerns about Gypsy status at the outset of the Inquiry.
39. For completeness, I mention at this stage that Regulation 16(3) says:

"Nothing in paragraph 16(2) should preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector."

40. And regulation 15 provides that the Local Planning Authority and the appellant shall together prepare a statement of common ground.
41. In my judgment, the appropriate approach to what procedural fairness requires in this context is to be found in the judgment of Ouseley J in Castleford Homes v Secretary of State for Environment Transport and the Regions and the Royal Borough of Windsor and Maidenhead [2001] PLCR 470. At paragraphs 52 and 65, Ouseley J said this:

"52. The relevant law, though not cited to me, is to be found in cases such as Fairmount Investment Ltd v The Secretary of State for the Environment [1976] 1 WLR 1255 at p1266; and H Sabey & Co Ltd v The Secretary of State for the Environment [1978] 1 All E.R. 586. Did the Claimant have a 'fair crack of the whip?' Was the Claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have anticipated? ...

65. Whilst an Inspector can reasonably expect parties at an Inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed."

42. In the present case, the claimant relies on the fact that the Local Planning Authority had not taken the view that the claimant and her family were not Gypsies when refusing the application for planning permission. Further, the Inspector did not raise the question of whether the claimant and her family were Gypsies for the purposes of Circular 01/2006 as one of the main issues at the outset of the Inquiry, nor did he raise concerns during the Inquiry, nor did he go back to the parties after the Inquiry ended, in accordance with the procedure in Regulation 18 of the Inquiry Rules.
43. However, if one considers the evidence as a whole, it is, in my judgment, clear that the claimant and her planning advisor knew that the question of whether the claimant and her family were Gypsies for the purposes of the Circular was or might be an issue to be addressed at the Inquiry. Furthermore, the claimant did deal with the question of her and her family's Gypsy status in her written evidence to the Inquiry and in her oral evidence to the Inquiry. She was also cross-examined on relevant issues and questioned by the Inspector on some of those issues, and her planning advisor adduced additional documentary evidence at the Inquiry on the question of Gypsy status. All those matters appear from the following facts:
44. First, Mrs Heine, the claimant's planning advisor who represented her at the Inquiry, says in her witness statement in these court proceedings that when she submitted the draft statement of common ground to the Planning Authority it had included a paragraph stating that it was agreed that the claimant had Gypsy status. However, this draft statement of common ground was returned prior to the Inquiry and that paragraph was deleted. Thus the claimant knew that her Gypsy status was not a matter which was agreed between her and the Planning Authority.
45. Secondly, Mrs Heine sent the planning officer an email on 27 March 2010 asking if the officer could confirm that she was prepared to accept Gypsy status so that this could be added to the statement of common ground. The officer replied on 1 April 2010 -- that is 12 days before the Inquiry began -- responding to that request and stating that it was unclear from Mrs Heine's proof of evidence what the exact chronology was and where the claimant and her family had lived from birth to the present time and that, subject to that, the Council reserved its position. So it was clear at that stage that, as a minimum, the Council was not agreeing that the claimant and her family were Gypsies for the purposes of Circular 01/2006. It is also right to note that the Council's statement of case for the Inquiry said that the Council would consider the Gypsy status of the appellant and her family once it had seen the appellant's evidence.
46. Thirdly, in the claimant's statement of case for the Inquiry itself, paragraph 2 states that Mrs Medhurst will give evidence in relation to her Gypsy Traveller status, and indeed both Mrs Medhurst and Mrs Heine in their proofs of evidence for the Inquiry did deal with the question of whether Mrs Medhurst and her family satisfied the requirements of Gypsy status as set out in the Circular. Mrs Heine says at paragraph 1.6 of her proof of evidence for the Inquiry that at the time of writing the proof no response to her draft statement of common ground had been received, but she noted that Gypsy status was not disputed by the Council when determining the planning application itself. Mrs Heine said in her proof that she "relied on the information submitted with the planning application, which is largely repeated in the statement submitted on behalf of Mrs Medhurst" to address the family's Gypsy status. Mrs Medhurst in her proof of evidence went into great detail about the family ancestry, their housing, their employment history and the extent of their travelling. Thus the claimant did have, and took the opportunity to, provide evidence about the Gypsy status of her and her family.
47. Fourthly, Mrs Heine in her statement in these proceedings in this court noted that she told the Inspector that she wished to submit some further evidence if Gypsy status was still not accepted. She then did hand in further evidence in the form of an extract from a book, and the claimant also produced a photograph (see paragraph 4 of Mrs Heine's statement) and both of those matters went to Mrs Medhurst's status as ethnically a Gypsy.
48. Fifthly, at the Inquiry Mrs Medhurst gave oral evidence about herself and her family. She was cross-examined about those matters by the representative for the Planning Authority. She also responded to some questions by the Inspector, and gave evidence that she still travelled and worked with Gypsies at other events in her mobile catering unit (see paragraph 9 Mrs Heine's witness statement for these proceedings).
49. In all those circumstances, I am satisfied that there was no procedural unfairness and no breach of natural justice in the way in which the issue of Gypsy status was dealt with at the Inquiry. The claimant and her advisor knew that Gypsy status was or might be an issue that needed to be addressed; they had, and took, the opportunity to put in written and oral evidence dealing with those matters. In my judgment, ground 5 is not made out.
50. In ground 6 the claimant contends that the definition of Gypsy Status laid down in Circular 01/2006 does not accord with Article 8 of the European Convention on Human Rights. It appears that the point being made is that the definition in the Circular focuses on those with a nomadic way of life and excludes those who may be ethnically a Gypsy and whose traditional way of life does involve living in a caravan but who do not have a nomadic lifestyle. Alternatively, the point is put on the basis that the application of the narrower definition in Circular 01/2006 amounts to a breach of Article 8.
51. Now, the claimant fairly acknowledges in her skeleton argument that these points relating to the definition of Gypsy in C ircular 01/2006 have been rejected by the High Court in McCann v Secretary of State for Communities and Local Government and Basildon District Council [2009] EWHC 917 (Admin); and Wingrove v Secretary of State for Communities and Local Government and Mendip District Council [2009] EWHC 1476 (Admin). The claimant says that she is raising the issue at this stage so that it can be reserved for further consideration should this application go to a higher court.
52. In my judgment, this ground of challenge fails. I am satisfied for the reasons given in Wingrove and in McCann that the definition in Circular 01/2006 and the use of that definition in a particular case do not involve, of themselves, a violation of Article 8 of the European Convention on Human Rights.
53. In ground 7 the claimant contends that the Inspector failed to comply with the duty imposed by Section 71(1) of the Race Relations Act 1976, which was the provision in force at the material time. The claimant contends that the Inspector failed to consider whether the refusal of temporary planning permission would promote equality of opportunity and good race relations between persons of different racial groups. In particular, the claimant says that the Inspector ought to have specifically assessed the impact that the refusal of temporary planning permission would have on the ability of the claimant and her sons to live their traditional way of life; the impact that a roadside existence would have on their equality of opportunity; and the impact of a roadside existence on race relations.
54. The material provision is this, and I quote from Section 71(1) of the Race Relations Act 1976:

"(1) Every body or other person specified in Schedule 1A or of a description falling within that

Schedule shall, in carrying out its functions, have due regard to the need—

(a) to eliminate unlawful racial discrimination; and

(b) to promote equality of opportunity and good relations between persons of different racial groups."

55. The Inspector found, of course, that the claimant and her sons were not Gypsies for the purposes of Circular 01/2006 as they did not have a nomadic way of life. They are, however, ethnically Romany Gypsies notwithstanding the fact that they do not have a nomadic way of life, and they are members of a racial group for the purposes of Section 71 of the Race Relations Act 1976. Indeed, the Inspector was well aware that the claimant was ethnically a Gypsy, having been born into a Romany Gypsy family. The Inspector did, therefore, in discharging his functions of dealing with the appeal against the refusal of planning permission, have to comply with the obligation in Section 71 of the Act.
56. The key questions here, in my judgment, are what did the duty require of the Inspector and did he comply with the duty? The relevant authority is the Court of Appeal judgment in R (Baker and others) v Secretary of State for Communities and Local Government and London Borough of Bromley [2008] EWCA Civ 141. The case should be read in its entirety. For present purposes I can summarise those feature of the decision that are particularly relevant to this case.
57. The Baker case also involved a decision by an Inspector dismissing an appeal against a refusal of planning permission for the retention of touring caravans and mobile homes. In the Baker case the appellants were found to be Gypsies within the meaning of Circular 01/2006, and the claim was that the Inspector in dismissing the appeal had failed to have due regard to the need to promote equal opportunity between persons of different groups (see paragraph 5 of the judgment). The Court of Appeal emphasised that the Section 71 duty is not a duty to achieve a particular result. That is, it is not a duty to achieve the elimination of unlawful discrimination or the promotion of equality of opportunity and good relations; it is a duty to have due regard to the need to achieve these goals, and the Inspector had to take that need into account and have due regard to it. Due regard was that regard which was appropriate in all the circumstances. These included the importance of the area of life of the members of the disadvantaged racial group and also any countervailing factors which are relevant to the decision-makers' functions (see paragraph 41 of the judgment).
58. In that case the Inspector had to have regard to the need to promote equality of opportunity to have housing, and also the powerful countervailing imperative set out in PPG2 that there should not be inappropriate development in the Green Belt (see paragraphs 32 to 34 of the judgment). The Inspector did not have to make a specific reference to the Section 71 duty; rather, the question is whether the decision-maker had, in substance, due regard to the relevant statutory need (see paragraph 37 of the judgment).
59. In the present case the Inspector here was aware that Mrs Medhurst was ethnically a Romany Gypsy. He was aware that she and her family did not wish to live in bricks and mortar and wanted to pursue a Gypsy lifestyle, living in a caravan and not in a house (see paragraphs 7 and 10 of the Inspector's decision). He was also aware of the effect that refusing temporary planning permission would have on Mrs Medhurst and her family.
60. Mrs Medhurst had given evidence of that, as appears from paragraph 20 of her witness statement for the Inquiry, and indeed the Inspector did extend the time for compliance with the enforcement notice, which required the use to cease and the mobile homes and caravans to be removed, so that they had more time to try and make alternative living arrangements. But, at the end of the day, the Inspector also had regard to the powerful countervailing factor that this site was in the Green Belt, and he considered that the presence of the mobile home and the caravans would be inappropriate development which would be harmful to the character and appearance of the countryside. As he said at paragraph 21:

"I further conclude that Mrs Medhurst or her family members have no overriding personal needs or circumstances that justify their continued occupation of the appeal site on a permanent or temporary basis. The objections to the development in its present form in terms of its impact on openness of the Green Belt and the appearance of the landscape are substantial and cannot be overcome by granting permission subject to conditions such as those agreed by the parties in the Statement of Common Ground."

61. In my judgment, the Inspector did have due regard to the circumstances and needs of the claimant and her family. He also paid regard to the countervailing factors concerning the protection of the countryside forming the Green Belt, and ultimately he considered that those countervailing factors prevailed over the needs of the claimant and her family. In those circumstances the Inspector did, in my judgment, perform in substance the duty required of him by Section 71(1) of the Race Relations Act 1976, and ground 7 of this claim is not made out.
62. The final ground has two parts. First, the claimant says that the Inspector erred in failing to take account of the shortage of accommodation for Gypsies and Travellers and the provision being made for addressing such needs. The Inspector was well aware of the position in relation to the shortage of sites in this area. Indeed, the argument for the claimant, at least in part, was that she should be granted temporary planning permission for 2 years, as that was justified because a proposed Gypsy Traveller facility at Coldharbour may become available at the end of that period (see paragraph 14 of the Inspector decision). But the Inspector found that the claimant and her family were not Gypsies for the purposes of Circular 01/2006. Consequently, on the facts of this case, the existence of an acknowledged unmet need for Gypsy sites in the borough was not material for the purpose of enabling them to benefit from the Circular (see the first two sentences of paragraph 21 of the decision).
63. However, Mr Willers contended that, in fact, (1) the Inspector also failed to have regard to the fact that Mrs Medhurst and her family were still ethnically Gypsies; and (2) failed to have regard to the unmet need generally and the impact that the refusal of planning permission would have on the family and the problems of where they would go if they had to leave the appeal site.
64. I do not read paragraph 21 of the decision in the way that Mr Willers says it should be read. The context of this decision is a family which is ethnically a Romany Gypsy family, as the Inspector noted. The family do not want to live in bricks and mortar. That is a fact that the Inspector recognises. They want a site where they can place a mobile home and the caravans so that they do not have to live in a house. The Inspector is well aware that there is a shortage of such sites in the area. In my judgment, in paragraph 21 of his decision, in the first two sentences, the Inspector is dealing with the Circular. He was well aware that the claimant wanted to come within the Circular in order to get the benefits of paragraphs 45 and 46 in particular but he decided that they did not come within the definition of Gypsy for the purposes of the Circular.
65. It is in the next part of that paragraph that he deals with the personal needs and circumstances of Mrs Medhurst and her family, and in context that must be a reference, amongst other things, to their ethnic Gypsy origin and their wish not to live in bricks and mortar. They wanted to have permission to live on the appeal site precisely because there is a shortage of such sites available. If they are not able to stay on that site, the family may, as the Inspector knew from the evidence, have nowhere else to go because of the shortage of sites. It seems clear, in my judgment, that the Inspector did have the needs of Mrs Medhurst and her family as ethnic Gypsies and the difficulties that they would face if they had to leave the site well in mind.
66. By way of example, the Inspector refers to the personal circumstances and the needs of the two sons: George and Michael. Those needs were needs stemming from their ethnic origin and their wish not to live in a house. They had no health needs. They had no educational needs. They are long since grown up and they are fit men doing landscaping and gardening work. Their personal circumstances and their needs stem from the fact that they are ethnically Gypsies who do not wish to live in a house and their needs stem from the need to have a site where they can live. But the Inspector considered that the interests of preserving the Green Belt outweighed the circumstances and the needs of Mrs Medhurst and her family. That is ultimately a judgment for the Inspector.
67. I do not read paragraph 21 of his decision as saying that because the family do not meet the definition of Gypsies in the Circular, therefore unmet needs for persons who are ethnically Gypsies but not nomadic is not a relevant consideration. Rather, I read that paragraph as saying they wish to benefit from the Circular, they need to be Gypsies as defined in order to be able to do so and they are not Gypsies as defined and therefore, in the context of being able to rely on the Circular, the issue of unmet need is not a material consideration. But the Inspector then goes on in a context where the issue is a need for a site for caravans and where there is unmet need, and decides that the particular needs and circumstances of this family, who are ethnically Gypsies, to be able to stay on this site is outweighed by considerations of the Green Belt.
68. The second part of ground 8 is a claim that the claimant and her family had a cultural aversion to bricks and mortar, and that that should have been taken into account. In the skeleton argument this is put as an error of law on the part of the Inspector and a breach of Article 8 of the European Convention on Human Rights. Mr Willers, however, fairly accepted that this was really a complaint that there had been a failure to have regard to a relevant consideration and if the Inspector had had regard to it, on a proper reading of the decision letter, then he was not suggesting that the Inspector's conclusion on that issue gave rise to any freestanding claim that there had been a breach of Article 8 of the European Convention on Human Rights in relation to this matter.
69. In my judgment, the Inspector was well aware of the fact that the claimant and her family did not wish to return to live in bricks and mortar (see paragraphs 7 and 10 of the Inspector's decision). He was well aware of the effect that refusing planning permission would have on the claimant's home and her family life (see paragraph 24 of the decision). But the Inspector considered that the interference pursued a legitimate aim, the preservation of the Green Belt from inappropriate development, and he was of the view that the cessation of the residential use and removal of the mobile home and caravans could achieve that aim. Consequently, whilst he did not use the actual words "cultural aversion to living in bricks and mortar" -- although, in fairness, it seems no-one at the Inquiry used those words either -- he was well aware that the claimant and her family did not wish to live in bricks and mortar because of their ethnic Gypsy origin. The Inspector took that into account but considered that other factors -- in this case the preservation of the Green Belt -- outweighed that factor. Consequently, ground 8 is not made out.
70. For all those reasons, I dismiss this claim.
71. MISS DAVIES: My Lord, I do have an application for costs to make. I hope a schedule of costs has reached your Lordship.
72. THE DEPUTY JUDGE: I have a schedule of costs.
73. MISS DAVIES: I am just discussing with Mr Neville, who instructs me, that we may need to make a small adjustment to that because we have finished at 3.30 pm this afternoon.
74. THE DEPUTY JUDGE: It should be slightly less?
75. MISS DAVIES: It should be slightly less, yes. My Lord, I am told that there was a conversation just before we came back into court: there is some uncertainty, I am told, about the date from which legal aid was granted to the claimant. So, the proposal, as I understand it, which those who instruct me are contending, is that your Lordship should make an order for costs in favour of the Secretary of State but that they should be subject to assessment in due course, and obviously on the basis that they would not be enforced without the leave of the court.
76. THE DEPUTY JUDGE: Mr Willers, do you have any observations?
77. MR WILLERS: The point relates to a conversation I had with my learned friend. My learned friend's instructing solicitor is exactly right. We have a certificate but it is dated 18 November, when the application was made on 5 April 2011, I believe. So clarification is having to be sought from the Legal Services Commission. Whatever date that dates back to can then be disclosed to my learned friend and her instructing solicitors, and then no doubt there will have to be some calculation as to costs that might have been incurred before 5 April and they will not be subject to the terms of the usual order. It may be that ultimately there can be some agreement and therefore there is no need for an assessment because I cannot see anything in the schedule that I have been provided with which would give cause for concern, but obviously we do not know what the date is that the Legal Services Commission are going to attach to the certificate, and indeed what costs would have been incurred up to that point.
78. THE DEPUTY JUDGE: So the position will be that, in relation to the time until legal aid was granted, the costs incurred by the defendant until that time, provided they are reasonable, will have to be paid by your client, and that is not known yet and has to be agreed.
79. MR WILLERS: Exactly.
80. THE DEPUTY JUDGE: But that the costs after your client got legal aid would be subject to enforcement.
81. MR WILLERS: Yes, not to be enforced without the leave of the court.
82. THE DEPUTY JUDGE: That is not, as it happens, the usual order these days, but the usual order seems to be never the same in two cases.
83. MR WILLERS: The Administration of Justice Act (Inaudible).
84. THE DEPUTY JUDGE: But the actual order that I am asked for is that the claimant pay the defendant's costs, to be assessed if not agreed prior to the date of the grant of legal aid.
85. MR WILLERS: Exactly, my Lord.
86. THE DEPUTY JUDGE: And also costs in favour of the defendant in rspect of costs incurred thereafter, but not to be enforced without leave of the court. The reason why I do it that way is if there is a dispute between you both about the amount of costs for the period prior to the grant of legal aid, you do not want to have to come back and get leave of the court. That can just go off for assessment. It is only the period after, is it not, the grant of legal aid that we are worried about? Is that right?
87. MR WILLERS: Yes, my Lord.
88. THE DEPUTY JUDGE: I will read out what I have written and then see if both of you are content. "The claimant is to pay the defendant's costs incurred prior to the date of the grant of legal aid, those costs to be assessed if not agreed and the claimant to pay the defendant's remaining costs in this matter. But that order is not to be enforced without leave of the court."
89. MR WILLERS: Yes. My Lord, from our point of view, we are content.
90. THE DEPUTY JUDGE: Do you understand what I am doing, Miss Davies?
91. MISS DAVIES: My Lord, yes, I understand. I am just wondering whether the second part should not also be "to be assessed if not agreed".
92. THE DEPUTY JUDGE: All right. So, "The claimant to pay the defendant's costs incurred prior to the grant of legal aid, those costs to be assessed if not agreed and the claimant to pay the defendant's costs thereafter, those costs to be assessed if not agreed. But no order in relation to those latter costs to be enforced without the leave of the court."
93. MISS DAVIES: That is fine, yes.
94. MR WILLERS: My Lord, yes.
95. THE DEPUTY JUDGE: So you are agreed on what it is that I am trying to do?
96. MISS DAVIES: We are in agreement, yes.
97. THE DEPUTY JUDGE: At least you understand what I am trying to do. I am going to try to make sure that the associate gets that properly sorted out when the order comes.
98. MR WILLERS: My Lord, there are two other matters.
99. THE DEPUTY JUDGE: Let me just make a note of that.
100. Thank you very much. Mr Willers, you have an application?
101. MR WILLERS: I have two further applications; one in relation to costs, simply that the claimant's publicly funded costs be subject to detailed assessment.
102. THE DEPUTY JUDGE: Yes, I order that the claimant's legally funded costs be subject to detailed assessment.
103. MR WILLERS: I am very grateful, my Lord. Then, finally, thank you for your Lordship's consideration in this matter and the judgment, but there is, notwithstanding, an application for permission to appeal, my Lord. It is clearly contingent on your Lordship considering that there is a real realistic prospect of success before the Court of Appeal that, in effect, their Lordships in the Court of Appeal may come to a different decision. It comes down to this: it would be my submission that there is a realistic prospect of success on grounds 1 and 3 in relation to the question of the Inspector's determination of Gypsy status in relation to George and Michael Medhurst: whether he did, in fact, as your Lordship has found, take account of the evidence of their travelling as set out in the proof of evidence provided by Mrs Medhurst, and, if he did, whether or not his decision was rational.
104. Then there is the breach of Article 8 point, my Lord, the ground 6 point, which your Lordship has found had no merit, but, clearly, we have the Wingrove and the McCann cases too, and that is a matter which I reserve for consideration by the Court of Appeal, and I would ask that your Lordship --
105. THE DEPUTY JUDGE: But how would that help your client, given that I have found that he did look at their ethnic Gypsy origin anyway? So he did not just confine himself, on the facts, to the Gypsy definition in the Circular, he, on my reading of the letter, looked at the wider issue.
106. MR WILLERS: If, in fact, the definition under the Circular is too narrow and, indeed, the claimant and her sons ought to have been entitled to Gypsy status, that would open the door to the other positive benefits.
107. THE DEPUTY JUDGE: But they were Gypsies.
108. MR WILLERS: Gypsies for the purposes of the Circular.
109. THE DEPUTY JUDGE: They were not for the purposes of the Circular, but he still did consider them to be Gypsies -- well, they are Gypsies -- on the general balancing exercise. So how --
110. MR WILLERS: Because paragraph 45 and 46 make it clear that in circumstances where there is an unmet need and there is an reasonable expectation that that need might be met, then substantial weight should be given to the unmet need, and that would be an element to put in the balancing exercise when considering whether or not to grant (Inaudible). So it would have made the difference, which is why the claimant and indeed her sons contended that they are entitled to Gypsy status. I hesitate to raise ground 8, the unmet need point, we did go through that --
111. THE DEPUTY JUDGE: That was my fault, I took a long time to get there but I got there, I hope, in the end, and you were very patient with me and I am very grateful.
112. MR WILLERS: I think it is somewhat contingent -- it is part and parcel of the Article 8 point in any event, it really -- it is an extension of that point.
113. THE DEPUTY JUDGE: Your bottom line is how do you assess people that are ethnically Gypsies but not nomadic Gypsies -- if I can put it like that -- and did the Inspector go right?
114. MR WILLERS: My Lord, that is right. The race equality duty point, I throw it in but I think once I have, as it were, digested your Lordship's judgment -- it may be that there are other grounds as well that I will look at again -- but once I have digested your Lordship's judgment, I may come to conclude that your Lordship is quite right about that and there is nothing that I can argue about in that regard. So, my Lord, ground 1, ground 3, ground 6, ground 8, and with hesitation ground 7, I would submit are grounds on which their Lordships in the Court of Appeal might come to a different decision on.
115. THE DEPUTY JUDGE: In my judgment, there is no realistic prospect of success in this case. The complaint, really, turns on the proper reading of the decision letter, and at the end of the day I am satisfied that read properly the Inspector did consider the relevant matters and I do not think in relation to these particular claimants their case would be assisted by the additional points that counsel for the claimant has raised. Consequently, I refuse permission to appeal.
116. MR WILLERS: Thank you very much for dealing with the application, my Lord.
117. THE DEPUTY JUDGE: My pleasure. I have just got to fill out this form now.
118. MR WILLERS: My Lord, should the claimant be minded to appeal, we are coming up to the Christmas break, I wonder whether or not your Lordship would give permission for 28 days to file notice.
119. THE DEPUTY JUDGE: You have got no objection to that, presumably?
120. MISS DAVIES: No.
121. THE DEPUTY JUDGE: I am happy to do that.
122. MR WILLERS: Thank you, my Lord.
123. THE DEPUTY JUDGE: Let me just make a note. Permission to appeal refused. Time for filing and serving notice of appeal -- shall we have a time and a date so that there is no confusion?
124. MR WILLERS: Certainly, my Lord.
125. THE DEPUTY JUDGE: What is 28 days from today, or a date near to that?
126. MR WILLERS: Friday 6 January, or 28 days is the 5th.
127. THE DEPUTY JUDGE: Do you object to 5 January?
128. MISS DAVIES: No.
129. THE DEPUTY JUDGE: So, time for filing and serving any draft notice of appeal is extended to 4.00 pm on 5 January 2012.
130. Are there any further matters?
131. MR WILLERS: No, thank you, my Lord.
132. THE DEPUTY JUDGE: Thank you both very much for your assistance and your patience as I tried to understand the arguments. Thank you as well to the claimant for the way in which she has conducted herself during these proceedings. I am very grateful to Mrs Medhurst for that.