England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/03/2012

MR JUSTICE OUSELEY:

1. This case concerns three claims against decisions of an Inspector appointed by the Secretary of State for Communities and Local Government given by letter dated 13 October 2010 in relation to two adjacent sites in the Green Belt of rural North Warwickshire. The two sites, known as the Western site and the Eastern site, together made up an area known as Wrens Nest. They were separated by a surfaced access. The Western site was considerably larger than the Eastern site.
2. North Warwickshire District Council on 19 September 2008 issued enforcement notices under the Town and Country Planning Act 1990 separately in respect of the Eastern and Western sites. Each alleged that the occupiers had made a material change of use in the land from agricultural use to use for residential caravans for gypsy families, with associated operational development. Each notice required the use to cease. Mr Hope and Mrs Lisa Taylor appealed against the Eastern site enforcement notice. Mr J Smith appealed against the Western site enforcement notice, but that appeal was pursued by Mr Sutcliffe and its other residents. Each argued, amongst other matters, that planning permission should be granted (Ground A) and alternatively, that an extension of time for compliance with the notices should be granted (Ground G). The Eastern site Appellants were separately represented from the Western site Appellants. The two appeals were dealt with at the one Inquiry. As the Inspector said in paragraph 1:

"1. The inquiry dealt with conjoined appeals relating to two separate but adjoining sites, with different appellants separately represented. Where possible, I have considered matters common to both sets of appeals together."

3. The Inquiry was held in June and October 2009 and January 2010. The Inspector dismissed both appeals on Ground A, but extended time for compliance in both appeals under Ground G from six months to eighteen months. He also dismissed an appeal on the Eastern site against the refusal of planning permission for the same use. The Local Authority had refused permission shortly before issuing the enforcement notice. There are therefore before me two appeals against the enforcement notice decisions under s289 of the Town and Country Planning Act 1990 pursuant to permission granted by Collins J in April 2011, who had required the appeals to be heard by the end of July 2011, which for some unknown reason did not happen. There is also an appeal under s288 for which no permission is necessary, against the dismissal of the appeal against the refusal of planning permission.
4. The Appellants appeal against the Inspector's decision on a variety of grounds, each largely covering the same issues. First, it is said that the Inspector failed to consider the two appeals separately, but treated them as giving rise to one decision ignoring material differences between the two sites and appeals.
5. Second, and related, it is said that in the case of the Eastern site he erred in his approach to the gypsy status of the occupiers and the fallback position they had urged concerning the use of the Eastern site for a Camping and Caravanning Club site. It was said that he had also not given the Appellants the chance to deal with those issues, at least in the way in which he resolved them.
6. Third, it was said that the Inspector wrongly took into account, when assessing the need for gypsy sites, a site with temporary planning permission contrary to the agreement between the parties, and irrationally on the known facts. He had failed to apply Planning Policy Statement 3, "Housing" to the need issue.
7. Fourth, the Inspector had refused to grant a temporary planning permission on an erroneous approach to need and policy.
8. Fifthly, he had wrongly taken into account the unlawfulness of the occupation of these sites without giving the Appellants the opportunity to deal with its significance.

Ground 1: Two appeals but one decision

9. No complaint can be made of the fact that the appeals were dealt with by the same Inspector at a single conjoined Inquiry, nor that the decisions were conveyed in a single decision letter. So much is obviously unobjectionable in law. But to understand the Appellants' ground of challenge, it is necessary to set out the structure of his decision letter.
10. The Inspector identified early on that the crucial issue was whether there were material considerations of sufficient weight clearly to outweigh the harm from these inappropriate developments in the Green Belt. Thus, the essence of the decision letter was an examination of and conclusion about the harm done by the use of the sites for gypsy caravans and whether very special circumstances existed so as to outweigh the harm done and to warrant the grant of planning permission. Mr Buley, for the Secretary of State, submitted rightly that all the Inspector's conclusions are directed to that point and within that framework.
11. The decision letter deals with the gypsy status of the occupiers of the sites separately, distinguishing to a modest degree between the occupants of the Western and Eastern sites. He recognised that there was no dispute on this point by the Council but did not think that the matter was "wholly clear cut". The Inspector concluded that the Western site Appellant, Mr Smith, whose very existence had been challenged by the Council, was not a gypsy; but he concluded that there were sufficient indications that the occupiers of the Western site were.
12. He noted in respect of the Eastern site that:

"The Council suggested, with reference to Land Registry documentation, that the Taylor family had occupied a house prior to moving to Wren's Nest, and that their nomadic habit of life was therefore in question."

He concluded however:

"14. However, without reasonably conclusive evidence that a nomadic habit of life had not been taking place in the past or been abandoned, I consider that the gypsy and traveller status for planning purposes holds good in the context of these appeals, although I have not accorded the full weight to this consideration which might have been the case if the matter had been clearer."

13. The Inspector dealt with the impact of these inappropriate developments in the Green Belt on the Eastern and Western sites, treating them separately. He drew conclusions on the impact, which differed in degree as between the two sites. In paragraph 21 of the decision letter he said:

"21. The development on each site has significantly diminished the openness of the area. The sites are in a predominantly rural scene with no other development close by, and, in my view, there is severe encroachment into the countryside which is readily noticeable. The western site has a substantial concentration of 6 caravans, associated sheds, hard surfacing, fences, vehicle parking and domestic paraphernalia, all of which contribute to the encroachment. I acknowledge that the eastern site is less intensely developed, with a smaller number of caravans and no hard surfacing and existing hedging between the plots, but this scale of development still results in a marked loss of openness in an otherwise undeveloped locality."

14. In paragraph 22, his comments on visual impact again drew a distinction in degree between the sites, with development on the Western site being the more intrusive. His overall conclusions however were in general terms equally applicable to both sites:

"23. To my mind, the visual intrusion adds significantly to the harm from inappropriateness of either development in Green Belt because of their encroachment into the countryside. In coming to this conclusion, I have also borne in mind that both sites looked significantly underdeveloped in terms of what might be expected to be present on the plots for full, ongoing occupation. For instance, it might be expected that larger mobile homes would be stationed on the plots, more plots may be hard surfaced, and more day rooms may be needed."

15. A number of issues which were not different as between the two sites were dealt with together: sustainability, flood risk and the need for gypsy sites. That was obviously sensible. The Inspector then turned to the Appellants' needs for accommodation and the availability of alternative sites, dealing first with the Eastern site.
16. The Council cited records that Mr Taylor had previously lived in a house in Willenhall for 2 years, but he maintained that he could not settle, and had worked to improve the house for a profitable sale. He sold it, purchased the whole Wrens Nest and had then disposed of the Western site. There were 3 pitches occupied by Mr Taylor, his wife and their daughter, another by his son and a third by his daughter with her husband and son. He had considered using the Eastern part as a Camping and Caravanning Club site, for which it was licensed, but he decided not to pursue that. He now wanted a static caravan and tourer on each plot so that his family could live together and he could continue to earn a living from cable buying with his son. Mr Taylor had suffered from ill health since 2008 and had been attending hospital regularly for diagnosis and treatment. With a settled life, he could manage his health with a local doctor and make sure that his young daughter received an education at Wood End Primary School which she was hoping to attend.
17. The Inspector concluded:

"50. It is apparent that there are benefits from the family living together in the traditional gypsy and traveller lifestyle, and the opportunities for continuing education for the children and Mr Taylor's healthcare which carry weight, but it is not so clear that these benefits are necessarily tied into occupation of this site. Mr Taylor's previous activities had enabled him to buy a house in Willenhall, which I accept may not have suited his needs, and which further enabled him to buy Wrens Nest in 2006 as a camping and caravanning site to run as a business. This was not pursued, and it seems to me that the residential occupation of the appeal site was an opportunity which he took advantage of, but without regard to the responsibilities arising from such an occupation. I appreciate that the use of land for a camping and caravanning site can be a complicated business, but a simple check would have clarified whether residential occupation was in order. Whilst now claiming that lack of money would effectively preclude being able to establish a settled comparable lifestyle elsewhere, there was little detail offered about the sale of the substantial part of the land (the western site) to Mr J Smith which, in the absence of any evidence to the contrary, would likely to have been for a substantial price. He would not consider moving on to a Council owned site, and the only alternative would be to live on the road."

18. The Inspector then dealt with the Western site where 8 plots were occupied by 3 families, themselves divided into a number of related households. He described where they had previously lived, their occupations, health care needs, the number of the children and the education which they were receiving. There were 21 children, of which 16 were under 16 years old and all but four were under 11. 7 were at the local primary school and another was expected to enrol there soon. 2 others were receiving home tuition. The Inspector commented:

"…but it must have been equally clear that occupying and establishing a site without authorisation would raise questions about the reasons behind a group of families, which seemed to have been pursuing relatively separate lives in various parts of the Midlands, coming together on this site when some, at least, seemed to have had strong links with more familiar locations."

19. The Inspector then rejected the Council's contention that 2 particular public sites were available alternatives, adding:

"55. It is not for the appellants to prove that there are no available sites, but this has to be balanced with the reluctance of the appellants to consult the relevant bodies who might have been able to offer help to find accommodation, and their stated position that Council sites would not be considered."

20. He then set out his "overall balance and conclusions". These set the framework, and justifiably are entirely undifferentiated as between the Eastern and Western sites:

"56. The harm to the Green Belt because of the inappropriateness of the development, and the substantial identifiable harm to the openness and visual amenity of the Green Belt, weigh very heavily against these developments….

"60. Apart from those matters which can be dealt with by conditions, the main harm is therefore the inappropriateness of the developments in the Green Belt, together with the harm to the openness and visual amenity of the Green Belt. In line with the guidance in PPG2, there need to be considerations which clearly outweigh that harm so as to amount to very special circumstances to justify the developments."

21. Then in dealing with those other considerations, the Inspector set out what he headed as "Other considerations common to both developments". These confirmed his conclusions on alternative sites and need which were common to both sites. He concluded:

"On the present evidence, the lack of alternative accommodation adds weight to the appellants' cases, but with the reservation that both sets of appellants stated that public sites would not be acceptable even if they were to be available."

22. He then discussed the Eastern site in paragraphs 65-70 under the heading "Other considerations – the eastern site". Although what he said is challenged on other grounds, it is at least an analysis of the health and educational needs of the Taylor family, the circumstances of the purchase of Wrens Nest and the relevance of the previous accommodation the family had occupied. Paragraph 66 is important:

"66. As with the health matters, the benefit of a settled site is also important in breaking the cycle of poor education in the community. The opportunity for Mr & Mrs Taylor's daughter to attend primary school into the future is a matter of weight….

"68. Whilst all these factors are significant, it is apparent that the Taylor family had a relatively settled life in Willenhall up to 2006 which would have addressed the health and education concerns. To my mind, this lessens the weight that can be given to the personal circumstances overall, but the fact remains that the right to pursue the traditional gypsy and traveller lifestyle is an important consideration, together with the threat to this if forced to move on from the appeal site. Having said that, whilst no details were made available, it stands to reason that the sale of the western site to Mr J Smith would have given the Taylor family resources to establish alternative accommodation."

23. The possible fallback use of the Eastern part of the site as a Camping and Caravanning Club site did "not give significant support to the appellants' case".
24. Under the heading "Other considerations – the western site", the Inspector considered the health and educational circumstances of the families. He said:

"71. From the evidence of the occupants of the western site, similar considerations apply. There are about 8 children attending the local primary school, and most of the families are registered with local doctors, with the children of Mr Pacer Sutcliffe requiring particular health care. The benefit of a settled site is important in breaking the cycle of poor education and health in the community, and the prospect of a significant break in the primary education of 8 children is a matter of weight. Having said that, there is nothing to suggest that these factors are other than typical of the likely occupiers if the pitches were available for persons falling within the definition of gypsy and traveller.

72. Living together as a group with the traditional gypsy and traveller lifestyle is also a matter of weight, together with the threat to this if forced to move on from the appeal site, although I have previously expressed some reservation about whether the coming together of this group of occupants, who seemed to have had a variety of travelling patterns in the past, also reflected the opportunity for accommodation which presented itself, and which was taken up without any prior notice or consultation."

25. Finally, he turned to his conclusions. These are not expressed differently for the Eastern and Western sites. Paragraph 73 is a good example:

"73. Having assessed the other considerations in the balance, at this point in my reasoning, they do not clearly outweigh the identified harm to the Green Belt and so the very special circumstances to justify inappropriate development do not exist. The overall provision of pitches in the District is not out of line with the estimated need, and whilst, at present, there is no realistic alternative accommodation, this should be a short-term problem. The appellants' need for accommodation, including the personal circumstances, whilst of significant weight, are not, in my view, so severe as to tip the balance such that a permanent planning permission would be justified."

26. Likewise in paragraph 74, the interference with Article 8 Rights ECHR is treated alike and his comment that follows is made without differentiation between the sites:

"However, the extent of the interference is tempered, in my view, because of the reluctance of the occupants to consider public accommodation if this were to be available, and my concerns that an opportunistic occupation of the sites took place without clear evidence that previous living arrangements were so unsuitable that occupation of the site without notice or consultation was necessary. Consequences arising from the Council's enforcement action and the refusal of planning permission are, to a significant extent, of the occupants' own making."

27. This leads to the overall conclusion:

"75. I find, therefore, that the likely interference with the occupants' home and family life does not contribute sufficient additional weight so that support for the developments clearly outweighs the objections in the longer term."

28. There was a debate over whether temporary planning permission should be granted. His comments are made again without differentiation between the two sites. He refused to grant it and turned to consider the extension of time for compliance with the enforcement notices under Ground G. Again, without differentiating between the 2 sites, but recognising clearly in paragraph 83 that there were indeed 2 sites, he concluded that time should be extended to 18 months. Both Appellants had argued for 2 years. The main factor supporting this was common to both: the potential that by 2012 alternative sites would have been identified, including ones to accommodate their needs, as part of the development plan process.
29. Mr Masters in respect of the Eastern site and Mr Rudd in respect of the Western site contended that each was entitled to an individual decision on the merits of their own sites. The Inspector at the end, they contended, had treated the sites as a single site, in effect ignoring differences in impact and needs, and failing to consider granting planning permission or temporary planning permission for one, if not for the other, of what they had put to him as potentially competing sites. One site might receive a permission even if the other did not.
30. Mr Buley submitted that this was in effect an argument that the Inspector had ignored material considerations in relation to individual sites or the possibility of granting permission to one and not the other. This was not a realistic view of the decision letter. Alternatively, it was an argument that no sufficient reasons had been given for not differentiating between the sites, to which the obvious answer was that the Inspector was clear that there were no sufficient reasons for such a distinction.
31. In my judgment, the Appellants are of course entitled to a decision on their individual appeal: to have the considerations material to it taken into account and not irrelevant ones, and to have legally sufficient and clear reasons dealing with the principal issues to explain why each has lost. That can be given in a single decision letter following a conjoined Inquiry.
32. The question, as Mr Buley submitted, although it is not entirely how the Appellants put their cases, is whether, on a fair reading of the decision letter, the Inspector has had regard to the considerations material to each site, has reached separate conclusions for each site, however expressed, and has not allowed the fact that the appeals were conjoined to obscure the need to reach different decisions on each if the merits of either case so warranted, and has given legally adequate reasons for his decisions on each site.
33. In my judgment, he has reached lawful and adequately reasoned decisions in relation to each site. He has properly divided the report into common and individual sections, the former dealing with issues common to both sites and the latter with the personal and planning considerations arising on each site separately. There is no improper confusion between the two. He draws the distinction between common and individual issues, both when setting out the evidence and in his appraisal in the overall balance and conclusions section of the letter. He expressly refers to the two developments and the two Appellants.
34. Paragraphs 73-75 of the decision letter, paragraph 78 (Temporary planning permission) and paragraphs 83-84 (Extension of time) deal with the sites together. This is not because the Inspector has suddenly forgotten that he is dealing with two sites, nor because he thought that the two stood or fell together regardless of their individual circumstances. It is simply because in drawing the final threads together from all that has gone before, he saw no reason to differentiate between the two sites in the final decision. It is clear from the passages cited above in his consideration of each of the Eastern and Western sites that the Inspector was unimpressed by much of the Appellants' cases that very special circumstances existed in respect of either. The Inspector is simply saying, in paragraph 73, having set out the individual factors, that neither set of Appellants has shown the very special circumstances required to overcome the harm each does. His conclusion, though generally expressed, is clearly applicable and intended to be applied equally to each site separately. There is nothing in the circumstances to show an error at the last by the Inspector.
35. Mr Rudd for Mr Sutcliffe and the Western site pointed to the high number of children of school and especially primary school age on that site as a factor favouring the grant of permission for the Western site, which did not apply to the Eastern site. The occupants of the smaller Eastern site could the more readily find alternative accommodation. Mr Masters for the Taylors and the Eastern site contended that on the Inspector's approach to need, the Eastern site but not the Western site could meet the immediate shortfall; the Western site would overtop it by some margin. This should have been a factor favouring his site. Each therefore submitted that the Inspector had ignored those material differences, or had failed to give adequate reasons for his conclusion on those issues.
36. I am not persuaded by these points. If there had only been one site, be it Eastern or Western, the reasoning and conclusions could and would lawfully have been expressed in the same way. The particular circumstances of neither site amounted to very special circumstances sufficient to outweigh the harm to the Green Belt. The fact that there are differences in degrees of harm and need on each site cannot mean that a conclusion that neither amounted to very special circumstances, shows that a material factor was disregarded or that legally inadequate reasoning had been provided to their substantial prejudice, simply because the Inspector has not spelled out that the combination of harm and need was different to a degree in each case but insufficient in both to amount to very special circumstances. It is obvious that that is what the Inspector concluded. There is nothing to suggest that he had thought that the one would be acceptable on its own, but could not be granted because of the other, or that the two were in effect one.
37. The caravan use of each site had a significant impact, although the Western site was larger and worse to a degree on his findings. Each had the potential to become more fully developed. Each required very special circumstances. The Western site had many more children of school age. So a balance between its greater impact and the greater personal need had to be struck on that site. And a balance had to be struck between a lesser degree of personal need but on a smaller site with some lesser impact on the Eastern site. There is no clearly different reasoning exercise required. The fundamental issue is the same. There is no obvious reason why one might have been allowed, even if the other were not. For example, the lesser impact did not occur on the site with the greater number of children. The one might meet the shortfall, which the other would exceed, but the Inspector had concluded that the unmet need in either instance was not a strong point for either; see paragraph 62 of the Decision Letter which refers to both sites. The families on the Western site, as a group might find a similarly sized site harder to find than would the Eastern site family but they had not been a group for long. Each site contained occupants whose needs might have to be met. Each site was given an extension of time which would enable the development plan site identification process to be significantly advanced or concluded. There is nothing about those factors of themselves which means that a generally expressed conclusion could not apply equally to both, allowing for such differences in degree and circumstance as each had.
38. Nor does the restricted weight he gave to the Taylors' gypsy status on the Eastern site, suggest that a more favourable conclusion could have been reached on the Western site which some erroneously conjoined conclusion thwarted. As I explain later, the Inspector treated the Eastern site fallback argument as providing insignificant support to the Taylors.
39. The Inspector could have expressed his reasoning as equally applicable to each site and he could have said that he had considered each site on its own. But I am not prepared to conclude that he did not do so in the light of the structure of the decision letter, the circumstances of each site and its occupants, and the cases which they separately put forward.

Ground 2: Gypsy status and the fallback position on the Eastern site

40. This Ground is relevant to Ground 1 because these are points of potential distinction between the two sites. I accept that the Statement of Common Ground, a valuable part of the Inquiry process, says "gypsy status is agreed".
41. The Inspector starts paragraph 11 by saying that the Council did not directly challenge the gypsy and traveller status of the Appellants but continued: "from the information provided by the appellants, I do not consider the matter to be wholly clear cut". He rejected any assertion that Mr J Smith, the nominal Western site Appellant was a gypsy – indeed the Council had asserted he did not exist. He accepted the Western site occupants as gypsies and travellers on the evidence. I have already set out in paragraph 12 above the extracts from the Decision Letter relevant to the Inspector's consideration of the gypsy status of the Eastern site appellants.
42. Mr Masters' contention was twofold. First, that once it was accepted in the Statement of Common Ground that the Eastern site Appellants were gypsies, there was no scope for giving lesser weight to their status since there was no known concept of gypsy status of lesser weight; second, it was unfair for the Inspector to treat them in that way without alerting the Appellants to his intention to do so.
43. Neither point in my judgment is sound. While I am prepared to accept that any notion of gradations of gypsies or travellers or of greater or lesser gypsy status would be misconceived, that is not what the Inspector concluded. The Appellants (save Mr Smith) are all gypsies.
44. It is the weight given to that fact in judging need and personal circumstances which was reduced by the Inspector, in circumstances where the Appellants occupying the Eastern site had owned and lived in settled accommodation, bricks and mortar, or its grounds, in recent years before purchasing and then selling part of Wrens Nest. That is the significance ascribed to what he said in paragraph 14, as the Inspector's consideration of the issues develops. The main passage in the decision letter is paragraph 68, set out above, in which the Inspector refers to the Appellants' relatively settled life in Willenhall up to 2006, drawing on the evidence referred to in the decision letter. This lessened the weight he gave to "the personal circumstances overall" of the occupants of the Eastern site. That is a perfectly lawful approach.
45. The Inspector's comments cited above from paragraph 74 about both Appellants' "opportunistic occupation of the sites" "without clear evidence that previous living arrangements were so unsuitable that occupation of the site without notice or consultation was necessary" is a legitimate comment on the evidence in relation to both sites and to both sets of Appellants each in their own different way. I see nothing to suggest that the particular circumstances and comment in respect of the Eastern site Appellants has been wrongly applied to the Western site. The District Council specifically referred to how the occupants had come to the Western site in particular. The reservation about the needs of the Western site occupants, mentioned in paragraph 72, is a reference back to paragraph 52 of the decision letter in which the Inspector pointed out that some Western site occupants had not been moving from site to site. The advantage of a settled site to those who had been moving would have been difficult to resist:

"…but it must have been equally clear that occupying and establishing a site without authorisation would raise questions about the reasons behind a group of families, which seemed to have been pursuing relatively separate lives in various parts of the Midlands, coming together on this site when some, at least, seemed to have had strong links with more familiar locations."

46. As to fairness, I do not have a record of all the evidence including cross-examination on this topic, but Mr Hope Taylor's own evidence raised the purchase of a house in Willenhall in 2006, but saying that he could not settle in it so he sold it, buying Wrens Nest instead, which was then operated as a Camping and Caravanning Club site, and as a base for his travelling. It was the planning application in August 2008 for permission to use the land as a residential caravan site which led to the withdrawal of the Camping and Caravanning Club site certificate. Mr Taylor was cross-examined about this. The Council gave evidence that whatever caravans had been on the site before mid 2008, it was not used till then as a site for residential caravans, permanently occupied.
47. It would not have been open to the Inspector to treat any appellant as not being a gypsy without alerting the parties to that fact so they could deal with that issue, but the Inspector did not fall into that error; he continued to treat the Eastern site Appellants as gypsies. That much is clear from paragraph 68 of the decision letter and there is nothing elsewhere in the decision letter to contradict it. Although the Appellants' gypsy status was not at issue, the nomadic habits and the accommodation which had previously been occupied were clearly raised as relevant to the weight to be given to Mr Taylor and his family's personal circumstances as part of the consideration of very special circumstances, see paragraphs 13 and 48 of the Decision Letter. The way this factor could be relevant was sufficiently clearly flagged for there to be nothing unfair about the decision letter. It was an obvious point for a person asserting very special circumstances as a gypsy to be ready to deal with.
48. There was no breach of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 SI.2685, paragraph 19(3). It was not a new fact or evidence. Nor do I consider that the Appellants have shown that the Inspector misunderstood the evidence of Mr Taylor, even taking paragraph 87 of the Witness Statement of Mr Brown, their planning consultant, as a sufficiently accurate summary of Mr Taylor's evidence. Wrexham County Borough Council v National Assembly of Wales [2003] EWCA Civ 835 is simply irrelevant to the issue as it arose here. The suggestion that the Inspector's approach betokens an appearance of bias is untenable. For those reasons Mr Masters' second point under this head fails.
49. The fallback position on the Eastern site was put forward as a further point which differentiated the Eastern from the Western site to its advantage, but which the Inspector was said to have ignored in his final analysis, because of the way in which he reached his overall conclusions. The Inspector dealt with this argument in paragraph 69-70. The past certification of the site as a Camping and Caravanning Club site did not mean that a new certificate would be issued. There was conflicting evidence on the likelihood of a new one being issued and the evidence on actual past usage was inconclusive. In paragraph 70, the Inspector said:

"70. Even if there were some likelihood that a certificate would be issued in the future, which is by no means guaranteed, it seems to me that Mr Taylor's lack of will or success in running the site as a camping and caravanning business indicates that, in this location, it is not a site which would be in great demand or attract much business. The site could be let or sold to another operator, but this is conjecture. I accept that the use would impinge on openness if it took place, but not nearly to the same extent as a full, all-year-round residential use with all the associated trappings. In my opinion, the fall-back position does not give significant support to the appellants' case."

50. The Inspector was entitled on the evidence to reach those conclusions and therefore to give the point insignificant weight. Once it was not a point at which the advantage to the Eastern site Appellants' case was significant, it could not be a point of significant distinction between the two sites. The fact that it was not specifically mentioned as a point of possible but insignificant distinction does not show any error either in relation to how the Inspector considered the sites or how he considered the Eastern site on its own.

Need

51. The Appellants contended that the Inspector erred in law in his judgment of need because, contrary to the agreement reached before the Inquiry and embodied in the Statement of Common Ground, and contrary to policy, the Inspector took into account the existence of a site with temporary planning permission. The Statement of Common Ground included the following: "(5) there is an unmet need in the district; (7) the Southern Staffordshire and Northern Warwickshire Gypsy and Traveller accommodation assessment identified a need for 12 additional residential pitches from 2007-2012 and 27 from 2007-2026 in North Warwickshire. 8. Temporary consents do not count against overall need".
52. The Appellants also contended that his approach to an important temporary planning permission was not based on the evidence, even if it were relevant to need. The Inspector had also misinterpreted or failed to deal with Planning Policy Statement 3, which favoured the grant of planning permission where there was an inadequate supply of sites for gypsy caravans.
53. The Inspector treated the GTAA figure of a need for 12 pitches to 2012 and a further 5 to 2016 as "primarily an estimate, not a determining policy to be used as an input to the regional strategy process to arrive at a more widely informed figure". The Inspector accepted that temporarily permitted pitches could not "count against the fulfilment of requirements in the longer term". But "the Hartshill site has provided a settled site of 7 pitches during the time when the allocation of pitches was in the process of being determined in the RSS". Hartshill is the site controversial for this case.
54. The Inspector continued:

"42. The current situation is that there is the provision of 7 pitches at Hartshill to 2012 plus the 1-pitch permitted site at Firtree Paddock, and I do not see that this provision is appreciably out of line with the guidance in Circular 1/06 to increase the number of gypsy and traveller sites in appropriate locations with planning permission in order to address the under-provision over the 3-5 year period 2006-2011, in the context of the recommended transitional arrangements set out paragraphs 41-46 of the Circular.

43. The longer term position depends on the permanence of the Hartshill site. The Council emphasised that it is more likely than not that Hartshill will be a prime candidate for inclusion in the proposed site allocations in the Development Plan and/or become a site with permanent planning permission. I consider that this cannot be reasonable discounted as the Council must be fully aware that if Hartshill is not confirmed, there would be significant pressure and difficulty finding a site of comparable size as a replacement for a site which is already well-established.

44. The Hartshill site is guaranteed until 2012, and on the present likelihood that it will become a permanent site, the additional requirement, in relation to the GTAA, would be 4 pitches in the period to 2012 and a further 5 pitches to 2016. I heard nothing to suggest that the Council would not be seeking to fulfil this requirement through the Local Development Framework, as advised by Circular 1/06. Of course, if Hartshill does not become a permanent site post-2012, the required provision would be 16 pitches."

55. He concluded:

"47. In the overall balance, the question, therefore, is the weight to be given to the identified requirement, including the likelihood of permanence of the Hartshill site, in relation to the weight to be given to the considerations for and against the appeal sites."

56. This fed into his consideration of the issues common to both sites as follows:

"61. Dealing first with the need for and provision of sites for gypsies and travellers, I found that the current provision is not significantly out of step with the GTAA estimate of need to 2012.

62. Eight pitches have already been provided, and I acknowledge that they have come about through planning appeals. Whilst this has allowed some gypsy and traveller families to benefit from settled sites, it has not provided a clear lead to the gypsies and traveller community about where longer term opportunities might be taken up. The Hartshill site of 7 pitches has a temporary planning permission which expires in 2012, but, in my opinion, judging by the opinions expressed in evidence at the inquiry, it is more likely than not that there will be permanent provision at this site. Alternatively, I consider that it would not be reasonable to simply discount this site as an element of continuing site provision. On that assumption, and taking on board the GTAA estimates of need, I found that a 4 further pitches will be likely to be required by 2012 and a further 5 to 2016, and the development plan site allocation process should address that provision. With all this in mind, I consider that the need and provision of sites is not, at present, a matter of significant weight in support of the appeals at this time."

57. I have already set out paragraph 73.
58. Circular 1/2006 "Planning for Gypsy and Traveller Caravan Sites" is intended to increase significantly the number of gypsy and traveller sites with planning permission in appropriate locations in order to address under provision over the 3-5 years from 2006. The process involves an assessment of need for gypsy and traveller sites in the GTAA, which is fed into the regional assessment, which in turn leads to the pitch numbers required for each local planning authority, then to be embodied in development plan documents. Until that happens, paragraph 43 states:

"Where there is a clear and immediate need, for instance evidence through the presence of significant number of unauthorised encampments or developments, local planning authorities should being forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTAAs."

59. Paragraph 49 emphasises that gypsy and traveller sites are inappropriate in the Green Belt, and alternatives should be explored before Green Belt locations are considered. Temporary planning permission can be considered where there is an unmet need in certain circumstances to which I shall have to turn under another head.
60. The Inspector, as paragraph 47 and his conclusions in paragraphs 61-62 demonstrate, had to consider what weight to give to this need in the context ultimately of whether very special circumstances existed sufficiently to permit inappropriate development in the Green Belt. It is a misreading of what he says to treat him as either ignoring the Statement of Common Ground or the policy approach that temporary planning permissions do not contribute to meeting a need for permanent sites. He was fully aware of that. His task however was to consider what weight to give to a shortfall in permitted sites when (1) for the time being a substantial part of the shortfall was made up by a temporary planning permission which is obviously relevant to the degree of urgent need, and (2) he concluded that there was a reasonable prospect of that temporary site becoming permanent during the development plan process. This was the approach urged by the District Council.
61. It would have been an error of law for the Inspector to take the GTAA figure, to ignore the position on temporary permissions, to ignore the transitional picture up to site allocations in development plan documents anticipated for 2012, and then to consider granting temporary planning permissions or more on the basis that the urgency was greater than it was and the prospect of meeting it on a permanent basis less than it was. The Inspector could not ignore material considerations so as to treat need in the artificial way suggested.
62. Nor did his approach involve any misinterpretation of policy, treating a temporary permission as helping to meet a requirement for permanent sites. The Inspector simply did not treat the temporary site as meeting the permanent need. He used it in order to assess what weight should be given in these appeals to the shortfall in sites, with the prospect that permanent sites adequate to meet the needs would be forthcoming in a few years through the completion of the development plan process. Mr Rudd recognised that the Inspector could consider the Hartshill site and as it could not go to meeting the permanent need, it is plain that it could only be relevant to the extent and gravity of the immediate need relied on as part of the argument that very special circumstances existed. That is how the Inspector considered it. It diminished the weight he thought it appropriate to give to the shortfall in permanent sites.
63. Two other points are taken about the Hartshill site. The first goes to the evidence as to the probability of it becoming an allocated or permanent site in view of what the Appellants said was the hostility of the members of the District Council towards it. Temporary planning permission had only been granted on appeal, notwithstanding the favourable recommendations from officers. The Inspector refers to that in paragraph 62, first sentence. The Inspector was entitled to rely on the evidence of the Council officer as to the decision-making process in the Council, and her assessment of the prospects of this site now becoming a permanent one, following a lack of success to a degree for the Council on appeal. It is said against that the Inspector could not rationally accept what was described as her assertion. It may be right, although the evidence is not clear as to what was provided to the Inspector, that there was as yet no application, no documentary evidence to support what the officer said, there had been no public consultation about it and there were therefore doubts as to whether it would come forward. Be that as it may, what she said was evidence and he was rationally entitled to accept it, and to come to the conclusion he did. He was also entitled to point out that, if it were not to become a permanent site, the Council would be making a rod for its own back because that would increase the number of sites which it would have to find elsewhere.
64. The second point concerned the number of pitches at Hartshill. The planning consultant for Mr Taylor gave evidence that although there were 7 caravans on site, there were only 4 pitches. The Council's evidence at the Inquiry was that there were 8 caravans now on the land which had been divided into 7 pitches; it did not suggest that 7 pitches were unacceptable, but 4 were. Although paragraph 40 of the decision letter suggests that the permission was for 7 pitches, when it was in fact a permission for 7 caravans, paragraph 41 refers to 7 settled pitches, as in effect does paragraph 42.
65. I am not persuaded that there was any error in appreciation of the facts, let alone a significant one, on the part of the Inspector. The issue of the number of actual pitches was raised, there was a difference in evidence between the Council and the consultant for Mr Taylor. This specific point was not raised as a ground of challenge so that what Mr Taylor's consultant said about it in his evidence to the Court hung in the air without calling for a response. I am not persuaded that the Inspector has erred in law in resolving the factual dispute, such as it may have been, in the way he did. The reality is that he approached it on the basis that there were 7 pitches, as did the Council in giving its evidence as to what the prospects were of a permanent permission, and that is what mattered.
66. Finally, the Appellants point out that PPS 3 "Housing" also, but in very general terms, deals with sites for gypsies; paragraph 21 requires the RSS to set out the approach to, and local planning authorities to plan for, a mix of housing having regard to the need to accommodate gypsies and travellers. It appears from Secretary of State decisions which I was shown, that that paragraph is not confined to housing accommodation for gypsies and travellers who might wish to have it. The key passage in PPS 3 for the Appellants is at paragraph 71: where there is less than a 5 year supply of deliverable sites for housing, which would be the conclusion here if a 5 year supply of gypsy sites is treated as a separate requirement from the conventional 5 year housing supply requirement, local planning authorities "should consider favourably planning applications for housing". In paragraph 38 of the decision letter the Inspector refers to paragraph 71 of PPS 3. The Inspector comments that site provision for gypsies and travellers' caravans is subject to the specific guidance in Circular 1/2006. The Inspector does not return to this particular policy document when discussing need. The Appellants contend that the Inspector has ignored this material consideration in favour of their cases, or has given no reason for his conclusion on it.
67. I do not agree . Although the Inspector does not return to PPS 3 - PPS3 does not stand alone but stands with the Circulars on the Green Belt, PPS 2, and Circular 1/2006 on Gypsy and Traveller Sites. Neither have been qualified by PPS 3 in 2010. Circular 1/2006 is more focused on the specific issue of gypsy and traveller sites and deals with unmet needs specifically and the role of temporary planning permissions in the transitional period before development plan documents have identified the necessary sites. PPS 3 does not alter the fact that these developments are inappropriate in the Green Belt and very special circumstances have to be shown before permission can be granted. The context for the Inspector's judgment remained therefore the need for the Appellants to show the existence of very special circumstances.
68. The Inspector treated PPS 3 as adding nothing to the balance in view of his conclusions on the specific need assessment. In my view he was entitled to do so. It could add nothing to the position with the development plan documents, because there were as yet no DPDs, which eventually should provide appropriately for gypsy and traveller caravan site needs. In the transitional period the Inspector rightly looked at the GTAA, recognised the shortfall and assessed the significance of that shortfall for the immediate need for sites. In reality, if the urging in paragraph 71 of PPS 3 that favourable consideration be given to permitting housing where there is no 5 year supply is intended to apply to gypsy sites, it is no more than another way of expressing the way in which a significant unmet need should be approached in Circular 1/2006; and each is subject to the requirement that very special circumstances exist for inappropriate development in the Green Belt.
69. In reality each policy document is making the same point: where there is a significant unmet need or, putting it in a way more readily applicable for ordinary housing, where there is an absence of a 5 year supply of deliverable sites, that is a factor which tells more in favour of the grant of a planning permission. In a transitional period it tells in favour of the grant of a temporary planning permission for a gypsy and traveller caravan site. But these, if PPS 3 paragraph 71 is applicable, are two policy documents making the same point in different ways, rather than two separate factors, the weight of which is to be added together. So omitting reference to PPS 3, even if it meant that PPS3 had been disregarded, could not mean that the weight to be given to such unmet need as was found could or should have been different. It is impossible to see what in substance PPS 3 adds to Circular 1/2006 in this context. If it adds something, whatever it adds could be only so marginal a point as to be incapable of making any difference to the balance which the Inspector struck.
70. I add that I am far from clear that paragraph 71 of PPS 3 could be intended to apply to the provision of gypsy sites. There would have to be a separate analysis of such sites, since a shortfall or surplus on the one could not rationally create or provide a need for the other; yet PPS 3 is silent about that. Second, since gypsy sites, unlike conventional housing, can be permitted temporarily to meet a need, the approach to a temporary shortfall may rationally be very different. I say nothing of transit sites in this context.

Temporary planning permission

71. The Appellants contended that the Inspector's consideration of the granting of a temporary planning permission to either site ignored or misinterpreted the policy in Circular 1/2006 for doing so where there was a significant unmet need. Paragraphs 45-46 of 1/2006 read:

"Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.

Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified."

72. The Inspector set out his conclusion in paragraph 78, but this needs to be read with paragraph 79 and 84 in which he allowed the Ground G appeal extending time for compliance with the enforcement notice from 6 to 18 months. Part of the criticism levelled at his approach echoes the criticism made of his assessment of need, but the Appellants also submit that the Inspector did find an unmet need and was "required" as Mr Masters put it, or "directed" as Mr Rudd put it, to give substantial weight to that point and it is clear the Inspector did not do so.
73. The Inspector, it is right, did not give substantial weight to the unmet need as he found it, for the reasons which he gave. This involves no error of law. The Circular "expects" but does not require or direct that substantial weight be given to the meeting of an unmet need. It is open to the Inspector to conclude that the nature and effect of the unmet need does not merit substantial weight in any particular case, provided he gives his reason for that view. The Inspector did so here.
74. In an enforcement context, which is not the specific context for those paragraphs in 1/2006, the Inspector also has the option of giving extra time for compliance as he did here. Whilst allowing an appeal on Ground G is not the same as granting a temporary planning permission, it achieves much the same purpose by enabling the occupants to remain for a period. The fact that their occupation is in breach of planning control but neither a crime nor wholly lawful is not an issue to which the Circular is addressed. Nor is the fact that, if occupants stay on a site after the expiry of the temporary planning permission, removal requires an enforcement notice to be served, which can then be appealed creating further delay. The purpose of the temporary permission sought was to enable to Appellants' needs to be met either on those sites or on suitable alternative sites identified through the development plan process. The purpose of the extension of time for compliance, as the Inspector explained it, was so that the Appellants' accommodation needs were taken into account in the identification of sites through the development plan process. Those purposes are essentially the same. The timeframe of 18 months from October 2010 appears to accommodate the DPD process. (In reality the delays in the appeal process in the Court has extended the point at which the 18 month period commenced to Spring 2012). I reject this ground of challenge.
75. There is nothing in this point either which required a different analysis of each site, or the absence of which meant that a material factor had been ignored. Each site sought a temporary permission to meet its occupants' needs until the conclusion of the site identification process in the DPDs. Neither warranted that, but each warranted an extension of time for compliance.

Lawfulness

76. Finally, the Appellants contended that the Inspector had erred in law in taking into account adversely to them the unlawfulness of their use of the land. This attack is specifically addressed to the passages already set out, culminating in paragraph 74 where the Inspector refers to the opportunistic occupation of the sites and additionally, in paragraph 77, comments that Circular 1/2006 points out that human rights and discrimination law does not give gypsies and travellers the right to establish sites in contravention of planning control.
77. The Inspector's approach on this was entirely proper. The lawfulness of the occupiers' occupation is not a neutral or irrelevant factor either, though it is far from necessarily determinative. It is a matter of weight for the decision-maker; see Chapman v UK (2001) 33 EHRR 18 para.102, and South Bucks District Council v Porter (No.2) [2004] UKHL 33, [2004] 1WLR, 1953. The opportunistic occupation of the land goes to the extent of personal need, as already discussed. In reality, the Inspector's comment on the law is very much directed to his point on opportunism, rather than being a separate factor. It is a mischaracterisation of the Inspector's approach to highlight the question of lawfulness as opposed to the question of opportunism. In my judgment, it was not of itself a factor of any real importance, though opportunism was.
78. There is nothing irrational in the weight given to this by the Inspector; it is all part of his consideration of the relevance of the degree of personal need to the existence of very special circumstances. In this he considers the departure from previous accommodation, the previous nomadic or otherwise lifestyle, the absence of consultation with the local authority and the arrival of the residential caravans. He describes this accurately as "opportunistic occupation".
79. It is said on behalf of the Appellants that the issue of opportunism, to which his comment on lawfulness goes, such as it is, and its significance was not raised. That is simply not correct. The Inspector was concerned to point out that acting in breach of development control as the Appellants had done, was not something which they were entitled to do by virtue of being gypsies and travellers. That is obvious. The significance of the places where the Appellants had lived, their nomadic or settled existence, and how they came to be on these sites was clearly raised in the local planning authority's evidence and submissions, for example in paragraphs 2.3-6 of the local authority's written evidence and in paragraphs 53, 56 and 60-64 of its closing submissions. It was pointed out that there was no evidence that they were forced to move and the onus was clearly on them to establish that very special circumstances existed. What the Inspector says about those facts in paragraphs 13-14 and 48-52 are self evident conclusions from the evidence which was raised and the arguments developed from it. That is relevant to the weight to be given to personal circumstances as the Inspector did. There was accordingly no breach of natural justice in his approach.
80. Accordingly, these appeals are dismissed.