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
		25 October 2016

MR JUSTICE GARNHAM:

1. This is a renewed application for permission to apply for a statutory review pursuant to Section 288 of the Town & Country Planning Act 1990 of a decision dated 29 June 2016 dismissing an appeal against a refusal of planning permission for the change of use of land to the south of Hilarion Cottage, Five Oaks Farm, Shurlock Road, Waltham St Lawrence, Reading.
2. The claimants sought a change of use so as permit the use of a site as a residential caravan site for seven families. The site was to contain seven static caravans, seven touring caravans and associated hardstanding and parking for fourteen vehicles. The Inspector who dismissed the appeal also concluded that temporary planning permission should not be granted.
3. The claimants are Romany gypsies who live on the site with their families, a total of thirty-nine people. The site is in the green belt. In 2009 there was an unauthorised, material change of use from agriculture to residential caravan site. An enforcement notice against this use was upheld on appeal by the Secretary of State in 2011. He allowed an eighteen-month compliance period that ended in February 2013, and shortly thereafter the council resolved to take direct action to clear the site. That was challenged in the courts. In January 2015 that challenge failed.
4. The present planning application was dated 20 January 2015. It was refused by notice dated 9 April 2015. The Inspector conducted a hearing and visited the site on 4 November 2015. He proceeded on the assumption that, if permission was refused, the site occupiers would be required to comply with the existing enforcement notice and leave the site. He issued his decision on the appeal on 29 June 2016.
5. It was common ground before the Inspector that the proposed use would be inappropriate development in the green belt. Accordingly, the principle issue in the case was whether the harm by reason of that inappropriate development was clearly outweighed by other considerations such as to amount to the very special circumstances necessary to justify the development. It was also common ground between the parties that there was a shortage of traveller pitches in the borough and that the five-year forward-rolling supply of pitches required by the planning policy for traveller sites in 2015 was not provided.
6. The Inspector set out his decision in a report running to twenty-six paragraphs. He concluded that the harm due to inappropriate development in the green belt should have substantial weight, and that the loss of openness and encroachment on the countryside should have considerable weight. He found considerable harm to the appearance of the countryside. On the other side of the argument he considered that the contribution which additional pitches would make to the acknowledged need should have considerable weight and, importantly, the personal circumstances of the appellant families which included the absence of alternative pitches for them should have considerable weight. He provided a definition for his descriptors of weight at the end of paragraph 7 when he said:

"When considering the balance of factors I shall rank their importance in descending order as substantial, significant/considerable, and minor/modest."

7. For present purposes it is particularly material to note a single sentence from paragraph 19 of the decision. He said:

"As it is well established that harm to the green belt by inappropriate development is now substantial weight, I conclude that in most situations personal circumstances associated with loss of accommodation by travellers in situations where unmet need means alternative accommodation is unavailable and/or unsatisfactory will not warrant being given substantial weight."

8. As regards the possibility of permanent planning permission, the Inspector said that the advantages of the proposal were outweighed by disadvantages. The advantages did not clearly outweigh the "harms" of the development so as to amount to very special circumstances sufficient to support the appeal. He said that in considering the possibility of temporary permission, the limited duration of such "harms" was a material consideration reducing the weight to be attributed to the harms in the balancing exercise. He concluded that the weight to be given to those "harms" was reduced, but nonetheless found that their cumulative effect remains substantial. So that even in respect of a temporary permission considerations of unmet need and personal circumstances did not clearly outweigh the harm to the green belt.
9. The Inspector concluded that the enforced departure of the Claimants would be an interference with their human rights to home and home life and would be harmful to the best interests of the children on the site. However he said:

"After having full regard to the importance of protecting the green belt, the other public interest factors referred to as counting against the proposal, I consider that the denial of a temporary planning permission would be proportionate to the community interest…that would be harmed by such a temporary permission."

10. The applicant commenced these statutory review proceedings on 7 September 2016. The case was considered on the papers by Mr Justice Dove who refused permission, holding that the claimants' case was not arguable.
11. The applicants are represented before me by Mr Marc Willers QC, the defendant by Mr Richard Honey. Mr Willers argued that the Inspector erred in law in three respects. First, he said he erred in law when determining whether very special circumstances existed to justify the grant of temporary planning permission and when attributing "considerable weight" to the site residents' personal circumstances and unmet need. Second, he argued that the Inspector failed to provide an adequate and intelligible explanation for his conclusion on the first ground. Third, he said that the Inspector erred in law by failing to weigh the best interests of the children living on the site in the balance when determining whether very special circumstances existed to justify the grant of temporary planning permission.
12. Despite the clarity and force with which Mr Willers advanced these arguments, in my judgment there is no properly arguable ground here. The Inspector concluded that the site residents' personal circumstances of unmet need should be given considerable weight but not substantial weight. In my judgment that is plainly not an error of law. If it were an error at all, it is an error on the facts. The weight to be attached to a relevant consideration is classically a matter for the decision maker, not for a court of review. In any event, the Inspector's view was, in my judgment, entirely consistent with paragraph 16 of Planning Policy for Travellers which provides that personal circumstances and unmet need are unlikely clearly to outweigh harm to the green belt and any other harm. What the Inspector was doing in my view was rephrasing that test in a workaday, but sensible, manner consistent with paragraph 16.
13. In my judgment, ground 2 adds precious little to ground 1.
14. Mr Willers says the Inspector provided no explanation for his decision to conclude that only considerable weight, rather than substantial weight, should be attributed to the personal circumstances and unmet needs of the applicants. That was precisely the issue he addressed at paragraph 19 of his decision. He noted the national policy in PPTS. He accepted that harm to the green belt and inappropriate development must be given substantial weight. He concluded that in most situations personal circumstances associated with loss of accommodation by travellers in circumstances such as these will not warrant being given substantial weight. He then concluded that on the facts of this case those interests should not be given substantial weight. I see nothing even arguably wrong with that explanation. And, since I have rejected the challenge of substance, I also reject as unarguable this adjectival challenge in ground 2.
15. Ground 3 attacks the weight given to the best interests of the children living on the site. In my judgment, the qualification "subject to the best interests of the child" cannot conceivably mean that paragraph 16 of the PPTS applies in the way suggested in every case where the interests of children are engaged. That qualification in my view simply underlines the necessity of giving separate consideration to the children's interests and that the Inspector did in paragraph 18.
16. In my view Mr Willers' attack in ground 3 is an attack on the weight to be given to the best interests of the children living on the site. The weight of competing interests is a matter for the Inspector, not for this court. There was no error of law given that the Inspector expressly addressed the question of the weight to be given to children's interests. He took that into account in carrying out the overall planning balance.
17. In my view there is no arguable case here. In those circumstances this renewed application is refused.
18. MR WILLERS: My Lord, thank you for considering the matter. I do not know if my friend has any application.
19. MR HONEY: No. The costs were dealt with in the order of Mr Justice Dove, which, as I understand it, still applies so there is no application for the costs today.