Royal Courts of Justice
Strand,
London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE BLACKBURNE
Between :
CHICHESTER DISTRICT COUNCIL | Claimant |
- and - | |
(1) THE FIRST SECRETARY OF STATE (2) GRANT DOE (3) GREGORY YATES (4) PAUL EAMES | Defendant |
(Transcript of the Handed Down Judgment of
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Richard Langham (instructed by Chichester District Council) for the claimant
Tim Mould (instructed by Treasury Solicitors) for the first defendant
David Watkinson (instructed by Community Law Partnership) for the second to fourth defendants
Judgment
Mr Justice Blackburne:
The claimant, Chichester District Council (“the Council”), seeks orders for the quashing of decisions made by the first defendant’s inspector in a decision letter dated 14 January 2003 on appeals under sections 78 and 174 of the Town and Country Planning Act 1990 (“the Act”). The appeals followed the service of four separate enforcement notices issued on 4 January 2002 concerning the use of a triangular shaped area of land off Ratham Lane, West Ashling, near Chichester in West Sussex, by the second to fourth defendants (“the appellants”). The land which was acquired by the third defendant in 1999 is bounded on its eastern side by Ratham Lane and on its western side by Bosham stream. It is split into four plots. Plots A to C each consisted of an enclosure accommodating, in the case of plot A, a mobile home and a touring caravan, used for residential purposes by the appellant Grant Doe and his wife and their infant son, in the case of plot B, a mobile home and touring caravan used for residential purposes by the appellant Gregory Yates and his wife and their daughter, and in the case of plot C, a touring caravan used for residential purposes by the appellant Paul Eames and his partner. On each of those plots there were also timber buildings and other items and adaptations, including services connections and hardstanding, to facilitate the plot’s use for the purposes of human habitation. Plot D comprised a narrow strip adjoining Ratham Lane to which it provided a means of access from the other plots. For ease of understanding, a copy of the site plan which was in evidence before me accompanies this judgment. It shows in bold the four plots and the immediate surroundings.
The effect of the inspector’s decisions was (a) to quash the enforcement notices relating to each of the four plots, (b) to grant planning permission on the deemed applications for the development enforced against (but subject to conditions) in respect of plots A to C and (c) to grant planning permission subject to conditions for the use of the site (comprising the four plots) as a private gypsy site with four mobile homes and associated outbuildings in accordance with the terms of an application dated 15 April 2002 which the Council had refused by notice dated 21 June 2002. The section 174 appeal was against the service of the four enforcement notices. The section 78 appeal was against the Council’s refusal of planning permission on the application dated 15 April 2002.
The enforcement notice relating to plot D was quashed by the inspector for uncertainty. There is no appeal against that part of his decision. The appeal against his decision in respect of the enforcement notices relating to the other three plots has been confined to ground (a) (section 174(2)(a) of the Act) on which the inspector’s decision turned. Grounds (c), (f) and (g) were also relied upon before the inspector. He held that the appeals on ground (c) failed, and came to no decision on grounds (f) and (g). He also rejected a separate contention by the appellants based upon an estoppel.
In paragraph 25 of his decision letter the inspector set out the main issues arising on the appeal. They were “(a) the effects of the development on the aims of policies seeking to protect the character and appearance of the countryside around Ratham Lane; and (b) if these effects are harmful, whether that harm is outweighed by other material considerations”. He then listed those other material considerations. They were said to include “the agreed gypsy status of the appellants, any need for gypsy sites in this part of West Sussex, the personal circumstances of the appellants and rights under the Convention for the Protection of Human Rights and Fundamental Freedoms”. In so stating the inspector was following the presumption, and the terminology, set out in section 54A of the Act according to which “where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise”.
The development plan relevant to the subject site comprised (1) the approved West Sussex Structure Plan of July 1993 and the adopted Chichester District Local Plan First Review of April 1999. In paragraphs 21 and 22 of his decision letter the inspector summarised the relevant policies contained in the Structure Plan. He said this:
“21. … Structure Plan Policy G1 sets the general strategy for the county by establishing the primary importance of protecting and improving the rural environment. Policy G3 takes this strategy forward by generally encouraging development within built up area boundaries around the existing or potential built up areas of towns and villages. The aim of this policy is that local plans should define these existing or potential built up areas and include all land which is likely to be necessary to accommodate the development proposed in the Structure Plan. Outside such areas development is to be strictly controlled, subject only to limited exceptions allowed for in other policies. Policy G5 is a general policy requiring development to meet high standards in its design and location.
22. The ethos of Structure Plan policy in the countryside is set by Policy C1 which seeks to protect the countryside for its own sake from development which does not need such a location. In particular development will not normally be approved outside built up area boundaries unless it is for quiet informal recreation or the essential needs of agriculture, forestry, mineral extraction, waste deposition or the implementation of Policy H6. The last provides for some limited provision additional to that in Policy H1 outside, but usually adjoining, built up area boundaries for social housing where there is a proven local need. Policy H1 seeks the strict control of housing in the open countryside, away from settlements. The Structure Plan has one policy relating to sites for gypsies, H7, which says that permission may be granted for the establishment by gypsies themselves of sites in suitable locations, whereas further local authority provision will be considered only in the light of demonstrated need.”
In paragraph 23, he summarised the relevant policies of the Local Plan. He said:
“Local Plan Policy BE1 identifies Settlement Policy Areas (SPAs) within the District; these … include West Ashling. Policy RE1 defines the area outside the SPAs as the rural area where development will be restricted to proposals complying with specified policies. These include Policy RE22, sites for gypsies. The aim of this policy is to permit such sites in the rural area only when it can be demonstrated that the number of families who reside in or resort to the District need the number of pitches in the location sought, and provided that eight criteria are satisfied. Amongst these criteria are compliance with Policies BE11 and BE14. The former is a general policy on new development, seeking to ensure that it does not detract from its surroundings in terms of design and location. Policy BE14 concerns wildlife habitat and landscape features and requires that new development incorporates design, layout and landscaping schemes appropriate to the site and which protect the appearance of the area. Local Plan Policy RE22 makes the protection and enhancement of the quality of the landscape a major priority.”
In paragraphs 26 to 30 he considered (as part of issue (a)) whether the development complied with Policy C1 of the Structure Plan. The Council submitted to him that it did not, the appellants that “substantially” it did. He found (at paragraph 30):
“… in all the circumstances of the appeal site, the changes in Government policy on gypsy site provision, subsequent to the approval of the Structure Plan, point to a conclusion that the appeal development does not conflict with the underlying aims of Policy C1.”
The Council challenges the inspector’s conclusion on this. Through Mr Langham, the Council contended that it was entitled to a clear finding that there was a breach of Policy C1 against which was to be assessed whether there were any other material considerations which outweighed such a finding.
Policy C1 is in the following terms:
“The Planning Authorities will seek to protect the countryside for its own sake from development which does not need a countryside location, and will ensure that the amount of land taken for development is kept to the minimum consistent with the provision of high quality and adequate space within the build environment. Development will not normally be approved outside built up area boundaries unless it is for quiet informal recreation or related to the essential needs of any of: agriculture, forestry, the extraction of minerals, the deposit of waste or the implementation of Policy H6. Permission will not normally be given for the extension of isolated groups of buildings or the consolidation of linear or sporadic development.”
It was accompanied by some explanatory text including the following:
“2.5 The possibility of some exceptions is acknowledged. Agriculture and forestry can be carried out only in the countryside, minerals can be worked only where they occur and waste usually needs to be tipped where there are suitable holes (often former mineral excavations): development which is judged to be essential to exploit any of these countryside resources may be permitted subject to environmental safeguards. So may small scale development which will help people to enjoy quiet informal recreation (policy R1), and social housing development (policy H6): in both these cases the amounts are likely to be small. Sites proposed for the development of renewable energy sources will often be in the countryside or on the coast.”
I accept Mr Langham’s submission that, the appeal site being in the countryside and in particular outside built up area boundaries, the development was in breach of policy C1: it was not in any of the limited exceptions permitted by the second sentence of the policy. The reference in paragraph 2.5 to “exceptions” is to those categories of development defined by the second sentence of the policy which are allowed by it and are not therefore in conflict with it. They are not merely examples of a wider genus. Nor does the reference in the second sentence to development that “will not normally be approved” point to some wider category of development which will be in accordance rather than in conflict with the policy.
In paragraph 26 of his decision letter, the inspector had drawn attention to the development being reasonably well screened, in particular with a hedge along Ratham Lane, although he accepted that the northern end of it, especially plot A, could be seen from elsewhere. This led him to find, in paragraph 27, first, that the development “does echo the character of the surrounding landscape and presently results in limited visual intrusion into the countryside in the vicinity” and, second, that the development, although not in strict accordance with policy C1, “substantially complies with [it] and other development plan policies”. He referred in paragraph 28 to what he described as a “tension within the Structure Plan” because of the terms of policy H7. That policy, concerned with gypsies, provided that “while permission may be granted for the establishment by gypsies themselves of caravan sites in suitable locations, further provision by the Local Authorities will be considered only in the light of a demonstrated need”. Its accompanying text stated that “… the Council wishes [gypsy] sites to be in locations with convenient access to schools and health services, and with a basic infrastructure available.”. The inspector referred to the fact that that policy did not define what was meant by “suitable locations” but observed that the appeal site was a suitable location within the terms of convenient access to schools and health services and with an available infrastructure. He then referred to “the policy advice” of Circular 1/94 (a Department of Environment circular entitled “Gypsy Sites and Planning” issued on 5 January 1994) which, as he pointed out, post-dated approval of the Structure Plan and concluded that “in the circumstances, though the Council's argument is technically correct, that the letter of Policy C1 does not allow for the establishment of gypsy sites in the rural area, that alone is not conclusive. Rather, it is the purposes behind the policy which have to be given particularly careful consideration, together with the changes to Government policy since 1994.”
Circular 1/94 had observed, in paragraph 6, that “gypsies make up a tiny proportion of the population of England and Wales, but their land-use requirements need to be met. … Local planning authorities need to be aware of the accommodation and occupational needs of gypsies …”. In paragraph 10 it stated that “it is important that policies for gypsy site provision are set out clearly in development plans …” and in paragraph 14 stated that “in deciding where to provide for gypsy sites, local planning authorities might, for example, consider locations outside existing settlements, but within a reasonable distance of local services and facilities, eg shops, hospitals and schools. Sites on the outskirts of built-up areas may be appropriate, provided that care is taken to avoid encroachment on the open countryside. Many sites may be found in rural or semi-rural settings, but care needs to be taken to ensure consistency with agricultural and countryside policies…”
Against that background the inspector said this in paragraph 29:
“Plainly the aim of Structure Plan Policy C1 is to prevent development in the countryside which is outside the defined settlement areas and SPAs and which does not need to be there. But both the policy, by using the phrase ‘will not normally be approved’, and the supporting text, in paragraph 2.5, acknowledge the possibility of some exceptions. Policy H6, which deals with social housing outside the built up area, provides a close parallel to the need accepted in Circular 1/94 for the land-use requirements of gypsies to be met, and is one of the express exceptions to Policy C1. The Circular also acknowledges that gypsies make up a tiny proportion of the population of England and Wales. Thus any exception for them would be unlikely to result in the undermining of the necessarily strict policy of control on development in the countryside because only the tiny gypsy population could benefit from it.”
That seems to be an attempt by the inspector, by reference to the phrase quoted by him from the second sentence of the policy and paragraph 2.5 of the explanatory text, to find that the spirit of the policy did indeed allow for exceptions beyond those specially identified in it. In my view that was to misread the terms of the policy and the accompanying explanatory text.
In paragraph 30, after observing that, according to the Council, comparatively few gypsies resort to West Sussex in general or Chichester in particular, the inspector stated:
“Though the Council said that paragraph 14 of Circular 1/94 indicates that gypsy sites must be consistent with countryside policy, that paragraph also says that many sites may be found in rural or semi-rural settings. This demonstrates that Government policy accepts that rural locations, such as the appeal site, are not inherently unsuitable for private gypsy sites. Hence in all the circumstances of the appeal site, the changes in Government policy or gypsy site provision, subsequent to the approval of the Structure Plan, point to a conclusion that the appeal development does not conflict with the underlying aims of Policy C1.”
In my judgment, that conclusion, read in its context, is a finding by the inspector that the development on the appeal site was not in material (as distinct from technical) breach of policy C1. In my judgment, the inspector was incorrect in so finding. He was entitled to find that other material considerations (including subsequent Department of Environment policy guidance and the other factors to which he drew attention in this part of his decision letter) led to a conclusion that policy C1 should be disregarded. Indeed Mr Watkinson appearing for the appellants submitted that that was in effect what he was doing. At one stage in his argument, as I understood him, Mr Mould for the Secretary of State suggested that that was indeed what the inspector was doing. But that was not how the inspector was approaching matters. He was not acknowledging a clear breach of policy C1 but finding that it was justified by other considerations. Rather he was finding that, given what he described as “the underlying aims of the policy”, there was no breach. But, as Mr Langham submitted, he should have proceeded on the basis that the development was in breach of the policy, as in my view it clearly was. To that extent, in my view, the inspector fell into error in this part of his decision letter.
In paragraphs 31 to 39 the inspector considered whether the development complied with Policy RE22 of the Local Plan. He said this:
“31. With regard to the Local Plan, compliance with Policy RE1 would result from the development meeting the criteria of policy RE22 on gypsy site provision and its requirement for need to be demonstrated. The latter is considered as part of the second main issue [namely whether, as another material consideration, there was any need for gypsy sites in his part of West Sussex] but on this issue the Council said that, in these appeals, it was criteria (1), (4) and (8) which were not satisfied. These require that sites do not detract from the undeveloped and rural character and appearance of the countryside [criterion (1)], that they do not create visual encroachment into the countryside [criterion (8)] and that the siting, layout and design are acceptable to the council in accordance with policies BE11 and BE14 [criterion(4)].”
The inspector then continued:
“Policy RE22 is central to the appeals as the only up to date specific gypsy site development plan policy. The Council said that this policy accords with national advice in PPG7 and Circular 1/94 and pointed to previous appeal decisions where Inspectors had considered that its criteria-based approach was not unreasonable …”
Then, after considering the advice in Circular 1/94 he said that (in paragraph 32):
“Viewed in isolation Policy RE22 does not appear unreasonable as a criteria-based policy; it is also in accord with the aim of PPG7 of protecting the countryside for its own sake. However, the policy does not operate in isolation but in the context of applications by gypsies for private sites, which is the method of provision now encouraged by Government policy.”
He then considered how in practice the Council had approached implementation of the policy, namely that it had not approved any gypsy sites within the District since all related to countryside sites. He observed that “in practice the Council's interpretation of Policy RE22 is one where only sites close in to built up areas, or within small groups of dwellings in the countryside and not defined as SPAs, are considered acceptable”. Then, after stating that little weight was to be placed on the Council’s arguments that other appeal decisions demonstrate that gypsy sites in the countryside are incompatible with the policy, he concluded (in paragraph 35) that “the criteria of RE22 should be applied to the appeal site, without any assumption that this gypsy development is inherently unacceptable in the rural area.”
He then proceeded, in paragraph 36, to apply policy RE22. He said this:
“Therefore, applying Policy RE22 to the appeal developments, it is considered that, in terms of criterion (1), little harm is caused to the three plots subject of the enforcement notices to the undeveloped and rural appearance of the countryside hereabouts. But even this limited harm could be overcome by the imposition of suitable conditions requiring planting, especially at the northern end of the site. Because Appeal E [the planning appeal] includes such proposals it follows that it too would cause little harm in this respect. However, the development does detract from the undeveloped and rural character of the site due to the increased activity and the amount of development. Appeal E would add to that quantum because of the fourth mobile home which would be introduced. Thus taking criterion (1) as a whole some harm is caused by the present development on the site to its aims and that would be increased were Appeal E to be permitted.” (emphasis added)
He then considered criterion (4) of Policy RE22 with which I am not concerned and went on, in paragraph 38, to consider criterion (8). He said this:
“As to criterion (8), the Council accepted that the site is reasonably flat land but maintained that the development results in encroachment into the open countryside. The ordinary meaning of that word is a serious intrusion, which this development is not given that [it] is presently only visible from two points. Furthermore, even this limited intrusion, and any visibility due to the loss of foliage during the winter months, would be overcome by existing and proposed planting. The development is therefore only an encroachment to the extent that it has led to the urbanisation of this site with the accompanying activity it generates. It is thus concluded that the development fails to comply with criterion (8) only to the same extent and for the same reasons as with criterion (1).”
In paragraph 29 he came to his overall conclusions in relation to the Council’s contentions in regard to PPG7 and Local Plan Policy RE22. He said this:
“In drawing together the above points to an overall conclusion on this issue account has been taken of the Council’s argument that the development breaches the aim in PPG7 of protecting the countryside for its own sake. That aim is important but it has to be seen in the context of the advice of Circular 1/94 that the needs of gypsies have to be met and that rural and semi-rural settings for sites may be appropriate. The PPG itself makes no specific reference to gypsy site provision, and given that Circular 1/94 pre-dates it, but that its advice on such sites is not amended or cancelled by PPG7, it is concluded that the Circular advice should enjoy greater weight in these gypsy cases. Bearing that in mind, and having regard to all the above considerations, it is concluded that the development causes, and in the case of the planning appeal would cause, some harm to the character of the countryside around Ratham Lane in the light of the aims of Local Plan Policy RE22. This harm therefore weighs against permission and accordingly it is appropriate to consider whether there are any material consideration which outweigh that harm.”
Although, as is apparent from what is contained in paragraph 39, the inspector concluded that the development was in breach of criteria (1) and (8) of RE22, Mr Langham submitted that that policy, in particular criterion (1), was to be understood in the context of PPG7 (which pre-dated the policy) and in particular paragraph 3.21 of that PPG, whereby:
“New house building, and other new development in the open countryside, away from established settlements or from areas allocated for development in development plans, should be strictly controlled. The fact that a single house on a particular site would be unobtrusive is not by itself a good argument; it could be repeated too often. Isolated new houses in the countryside require special justification - for example, where they are essential to enable farm or forestry workers to live at or near their place of work. … An isolated new house in the countryside may also exceptionally be justified if it is clearly of the highest quality, is truly outstanding in terms of its architecture and landscape design, and would significantly enhance its immediate setting and wider surroundings …”
Mr Langham’s criticism was that the inspector had failed to consider, as paragraph 3.21 of PPG7 required, what the special justification was for allowing new houses (which would include mobile homes of the kind put up by the appellants on the appeal site) in open countryside (as is the appeal site) even where the development would be unobtrusive. It was not sufficient, he submitted, for the inspector to say that the visual impact of the development could be eliminated by screening, much less to consider and acknowledge the impact of any increased activity resulting from the development. The inspector, he said, had simply failed to assess the need for special justification which paragraph 3.21 required.
I consider that the criticism is not justified. Although the inspector did not refer in terms to paragraph 3.21 he did refer, in more than one place, to PPG7. Thus, in paragraph 27 of his decision letter, he acknowledged that PPG7 points out that the fact that a single dwelling cannot be seen is not a good argument for permission. In paragraph 39 he said that account had been taken of the Council's argument that the development is in breach of the aim of PPG7 of protecting the countryside for its own sake. In particular, he referred in that passage to the need to consider that aim “in the context of the advice of Circular 1/94 that the needs of gypsies have to be met and that rural and semi-rural settings for sites may be appropriate.” That seems to me to be an acknowledgement of the need for justification of such a development in an open countryside setting which is precisely what paragraph 3.21 calls for. It is that exercise on which he embarks in his consideration of issue (b) concerned with “other material considerations”.
Mr Langham had two criticisms of the inspector’s assessment of other material considerations. The first related to his assessment of the appellants’ personal circumstances when viewed against his conclusions regarding the need generally for gypsy sites in the Chichester District. The second related to his assessment of the impact of article 8(1) of the ECHR in the event that the Council were allowed to take action on the enforcement notices.
On the question of general need and the appellants’ personal circumstances, the inspector began by considering the need for gypsy sites generally. After a review of the evidence he concluded (at paragraph 49) that:
“Comparing the outcome of those supply and demand analyses, it is evident that there is currently a substantial need for additional gypsy sites in Chichester District. The Gypsy Liaison Officer agreed that vacancies on County Council [ie West Sussex County Council] sites remain for no more than a few days, and that where works are being carried out to refurbish pitches gypsy families queue at the gates and often force their way on before the contractors have finished. That implies both urgency and need and does not accord with the picture painted by the Council of adequate provision and little unmet demand … The analysis has been confined to this District and, notwithstanding that the County Council’s evidence was useful in establishing the wider context, that is considered appropriate. Not only have both the Yates and Doe families lived for most of the past several years in this District but the Council’s evidence was essentially based on the situation in Chichester rather than the wider area. Hence it is concluded that the District is the appropriate unit for consideration and that the substantial unmet need which has been demonstrated to exist in this area weighs strongly in favour of permission …”
He next came to consider the appellants’ personal circumstances. He dealt first with the Yates and Doe families. He considered the circumstances in which those two families had left a site at Easthampnett and moved to the appeal site which was just before Christmas 2001. He concluded that there was a cogent reason for their having done so, even though their action in moving onto the appeal site without approaching the Council or submitting an application for planning permission beforehand could not be condoned. He then considered the health, education and social welfare needs of the two families. A particular factor was the very strong emotional tie between the two families, Mrs Doe and Mrs Yates being sisters. The evidence was that they had always remained with their parents, a Mr and Mrs Golby, although the move from the Easthampnett site to the appeal site had involved a separation of the parents from their two daughters. In the course of considering these issues the inspector said this:
“57. This leads to the second consideration, that the effects of the separation of the Yates and Doe families, which is probable in the event that permission is refused for these appeals given the above conclusions on the availability of pitches in the Chichester area, should be taken into account. The unchallenged evidence on behalf of the appellants was that, where gypsies are not on semi-permanent sites, their access, and especially that of their children, to education, health and social welfare facilities is significantly and adversely affected. In these cases each family has one child, the Yates a daughter in her final year at primary school, and the Does a fifteen month old boy. This would appear to give them priority to a County Council site, but the Gypsy Liaison Officer said that it could not guarantee them a place because there might be other more pressing cases when a pitch became available.
58. It seems that the County Council has no specific points or criteria based policy for determining who is allocated a pitch at any site from the waiting list of names …. It is thus impossible to predict whether, where or when either of these families might obtain a County Council pitch. In any event the likelihood of two pitches becoming available on one site in the County appears very remote, unless their application coincided with the probable reopening of the Adversane site near Billingshurst. Hence, either family might find themselves offered a pitch on a site within West Sussex but far from the other family and/or from the Golbys. Moreover, there is some risk that either might instead find themselves without any offer and be forced onto the roadside or other unlawful stopping places.”
Then, after dealing with education considerations, the inspector concluded (at paragraph 59) that in all of the circumstances “the health, education and social welfare arguments in the context of the recognition of the cultural importance of extended gypsy families adds weight to the case for permission for the Yates and Doe families.”
Mr Langham’s criticism of this conclusion was that references in paragraphs 64 and 65 of the decision letter suggested that one family at least (and possibly two of them) might after all have the prospect of obtaining a County Council pitch if they were required to vacate the appeal site and that this was a matter which to some extent diminished the general needs point which the inspector had found to be established earlier in his decision letter. Those other passages (appearing in a section concerned with Human Rights considerations) were, in paragraph 64, that if permission were refused for the appeals then, “because all three appellants are unlikely to be able to obtain pitches within Chichester District within a reasonable period, one or more of them would have to look more widely within West Sussex” and the other, in paragraph 65, that “… the coming into effect of the notices would, on the balance of probabilities, deprive at least one of the appellants of their home for a significant period”. Those passages implied, said Mr Langham, that one at least of the families might indeed be provided with a pitch in the Chichester District or more widely in the county.
I consider, in agreement with Mr Mould, that those passages must be read in context. The context was a contention by the appellants that to allow the enforcement notices to take effect would affect them disproportionately because the harm to their extended family group would be increasingly serious, whereas the harm to the environment, if planning permission were granted, would not be great. The context therefore was the disproportionate consequences to the extended family group of separation if the notices were upheld. I do not consider that the inspector was intending thereby to depart from his earlier conclusion on the need for gypsy sites in the area, much less to imply that one at least of the families could expect to be provided with a pitch if the notices took effect.
The inspector dealt separately with Mr Eames. Mr Eames, he said, was single, although he had a partner. He was not related to the Doe and Yates families although he had been regarded by the latter as part and parcel of their extended family because he had travelled and worked with them for many years. After referring to these and related matters, the inspector said that the evidence did not demonstrate that there had been a longstanding family relationship typical of the gypsy community. He therefore concluded (in paragraph 61) that:
“The absence of cogent evidence on that point or on any other personal considerations that might weigh in favour of Mr Eames thus distinguishes his case from that of the Yates and Does on this part of this second main issue.”
The inspector nevertheless went on in that paragraph to say this:
“… Nonetheless, the Council’s point that as a single person he is entitled to be considered for a place on a County Council site leads to the conclusion that he is thus part of the demand for such sites. However, the area applicable in his case is the wider area of West Sussex, rather than Chichester District, because there is no evidence of his residing in the latter for any length of time and for the reasons already given he cannot claim a close family need (as opposed to preference) to be near the Yates, Does and Golbys. As to the likelihood of his obtaining a pitch in that area [ie the wider area of West Sussex] in the foreseeable future, the evidence is inconclusive. On the one had he is seeking only one single pitch within a wide area, but on the other hand as a single man he is unlikely to have any priority over others with dependants.
62. Bearing in mind all these consideration the question of whether Mr Eames’ case attracts any additional weight appears to come down to whether or not there is a reasonable likelihood that, if he were to apply, he would be able to obtain a pitch on a County Council site within West Sussex during the foreseeable future. There are so many unknowns in terms of site availability … as well as the nature of the allocation policy, that a confident forecast is all but impossible. Nevertheless, on the balance of probabilities it is concluded that, although a suitable pitch is likely to become available in that area [ie West Sussex generally as distinct from Chichester District in particular] within the next few months, Mr Eames’ status as a single person is likely to mean that he would probably not be offered such a vacancy. Accordingly, bearing in mind Government policy encouraging gypsies to obtain their own sites, and that neither the Council nor the County Council could show otherwise, the likelihood that he would remain without a lawful place to stay for some time, even if he applied for a local authority site, weighs in favour of his case.”
Mr Langham’s criticism of the inspector’s consideration of Mr Eames’ position was directed to the reference in paragraph 62 to “additional” in his reference to whether Mr Eames’ case attracted “any additional weight”. Relevant to this criticism was the inspector's earlier finding, in paragraph 61, that there were no personal considerations that might weigh in Mr Eames’ favour and that, in any event, the area for consideration in his case was West Sussex generally, rather than (as he had found in relation to the Does and Yates) Chichester District on its own. Accepting nevertheless that, in paragraph 62, the inspector was able to find that there were considerations in Mr Eames’ favour (whether of a general nature concerned with a need for gypsy sites in West Sussex generally or of matters particular to Mr Eames as a single person) it could not be right, said Mr Langham, that he should also have the benefit of the narrower general needs finding referred to in paragraph 49. In short, whatever matters could be weighed in favour of Mr Eames’ case, whether of a general or of a particular nature, those matters were to be found in paragraph 62 and not in paragraph 49. The suggestion, therefore, that what was to be found in his favour in paragraph 62 was “additional” betrayed a confused and inconsistent approach and vitiates his overall assessment of Mr Eames’ position.
On a careful re-reading of the paragraphs of the decision letter leading to the inspector's conclusion on the need for gypsy sites in Chichester District set out in paragraph 49, I was minded to think that all of that was directed simply to the position of the Doe and Yates families (significantly relevant to which is that it is only to those two families that the inspector makes reference in those paragraphs, there being no reference to Mr Eames) and that the assessment of general needs and personal circumstances in the case of Mr Eames was to be found simply in paragraphs 60 to 62. But it is evident from paragraph 72 in which the inspector weighs in Mr Eames’ favour (as material considerations) “the need for gypsy sites in the District [ie Chichester District], his personal circumstances, including his gypsy status” that the inspector is indeed affording him weight both in regard to the matters which led to his conclusion in paragraph 49 and also to the matters referred to in paragraph 62 and that he does so notwithstanding his finding in paragraph 61 that there was an absence of cogent evidence of any personal considerations that might weigh in his favour. I am therefore left in a state of considerable uncertainty as to exactly what the inspector was weighing in Mr Eames’ favour and why. It follows that his decision, so far as Mr Eames’ is concerned, is open to review on this aspect of his assessment.
Mr Langham’s second criticism of the inspector's assessment of other considerations focused on what the inspector had to say in relation to article 8 of the ECHR. The Council accepted that to uphold the enforcement notices would involve an interference with the appellants’ article 8(1) rights. Instead, it argued that the circumstances of the interference and the requirement to protect the environment justified the interference under article 8(2).
In paragraphs 64 to 69 of his decision letter the inspector carried out a careful review to determine whether, on the facts, the admitted interference with the appellants’ article 8(1) rights constituted by the refusal of planning permissions and the consequent upholding of the enforcement notices, was necessary. Mr Langham criticised one aspect of that review to which (as appears from paragraph 70) the inspector attached considerable weight. It was the inspector's approach in paragraph 69.
The context for what is said in that paragraph is the judgment of the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 18 in which a gypsy who lived with her family in a caravan on land that she owned was refused planning permission and enforcement notices were issued. It was held, inter alia, that there had been no violation of article 8. I need refer only to what was said in paragraphs 96 to 100 of the judgment:
“96. … although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.
97. It is important to appreciate that in principle gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude gypsies as a group. They are not treated worse than any non-gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English courts, that the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved.
98. The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised gypsy sites, the decision not to allow the applicant gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to protection on minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States.
99. It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.
100. In sum, the issue for determination before the Court in the present case is not the acceptability or not of a general situation, however deplorable, in the United Kingdom in the light of the United Kingdom’s undertakings in international law, but the narrower one whether the particular circumstances of the case disclose a violation of the applicant, Mrs Chapman’s, right to respect for her home under Article 8 of the Convention.”
In paragraphs 69 and 70 of his decision letter the inspector said this:
“69. Account has been taken of the Council’s argument that the judgment in Chapman found that the United Kingdom Government was not under an obligation to provide an adequate number of gypsy sites. But paragraph 9 of Circular 1/94 says that repeal of the statutory duty of local authorities under the 1968 Act to provide gypsy sites makes it all the more important that local planning authorities make adequate gypsy site provision in their development plans. In this case the Council has not demonstrated that it has a sound statistical basis for its conclusion that there is no need for any new gypsy site, despite saying that it accepts that there is a small unmet need. Furthermore the Council has not granted a single planning permission for a private gypsy site since their Local Plan was adopted in 1999, and the only private gypsy sites in the district all appear to have been granted on appeal, that is following refusal of permission in the first instance by the Council. That situation, coupled with the Council’s interpretation of the Local Plan gypsy policy, RE22, appears to have ensured that in practice there is little credible prospect of any private gypsy site being permitted by the Council. This conclusion has to be seen in the context of the need for sites in the District, Policy RE22 and paragraph 249 of the Local Plan, and Government policy in Circular 1/94 which makes it clear that the needs of gypsies must be met.
70. Against this background the limited harm caused to the environment, and hence to the public interest, by the appeal development has to be weighed against the serious harm to the appellants arising from the failure to recognise and provide for the needs of gypsies in the District by granting permission for sites. It is concluded that in this case that limited harm does not constitute a pressing social need for the interference with the article 8(1) rights of all of the appellants which would result from the upholding of these notices. Moreover, by leading to a situation where there is a high probability that at least one of the appellants would lose their present home for a significant period, such interference would be disproportionate. For these reasons, and because the Council has not convincingly established why the interference is necessary, it is conclude that it is unacceptable. Thus the human rights arguments weigh heavily in favour of the appellants.”
I take the last sentence of paragraph 70 to be a finding that the upholding of the enforcement notices would indeed constitute an unjustifiable interference with the appellants’ article 8 rights.
It seems to me that, as Mr Langham submitted, although in paragraph 69 the inspector noted that the United Kingdom Government was not under any obligation (by virtue of article 8) to provide an adequate number of gypsy sites, he, in effect, held that article 8 carries with it a duty on the Council, as the relevant local planning authority, to exercise its planning powers to help achieve that end in its area. In my judgment the article imposes no such an obligation. The inspector was wrong to think that it did.
Mr Mould accepted that the overall decision could not stand if, for example, I were to accept (as I have) Mr Langham’s submission with regard to the inspector’s error of approach over article 8. Mr Watkinson submitted that, even if I had accepted all of Mr Langham’s grounds of attack on the inspector’s decision, the inspector would necessarily have come to the same overall conclusion. In so saying he had in mind the comments of the Court of Appeal in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 at 42 and 44.
In a matter as fundamental as the correct approach to article 8 and the weight which the inspector gave to it in his decision, to say nothing of the effect on his decision of the position of Mr Eames, I do not accept that Mr Watkinson can be right. In my view the decision cannot stand. I should, however, add that if the only successful challenge to the inspector’s decision had been Mr Langham’s first point I would have seen considerable force in Mr Mould’s fall-back submission that, even if the inspector had clearly accepted that the development was in breach of Policy C1 (and not merely in technical breach of it), the inspector would almost certainly have come to the same overall decision.
In the circumstances I propose to accede to the claim and quash the planning permissions granted. The matter will have to be resubmitted to the first defendant to reconsider the matter.
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MR JUSTICE BLACKBURNE: For the reasons set out in the judgment, I propose to accede to the claim and quash the planning permissions granted. The matter will have to be resubmitted to the first defendant for reconsideration.
MR LANGHAM: I am obliged, my Lord. In the light of your Lordship's judgment I ask for an order to that effect. In my respectful submission it would be useful if the order made it clear that there are four planning permissions being quashed, possibly if it said something like, 'Planning permissions granted in respect of appeals', and then it is A, B, C and E referred to in the decision letter.
MR JUSTICE BLACKBURNE: Yes. Well I am, subject to hearing from the other side, willing to do that.
MR MOULD: My Lord, that seems sensible.
MR JUSTICE BLACKBURNE: So be it.
MR LANGHAM: As to costs, my Lord, I ask for an order that the Secretary of State pay the Council's costs. Although this matter was listed for more than a day both the Secretary of State and the Council desired your Lordship to make a summary assessment. The figure happily is agreed as to the total of the Council's costs. The sum is £14,018.
MR JUSTICE BLACKBURNE: Yes.
MR MOULD: My Lord, that is agreed and I accept the liability to pay costs.
MR JUSTICE BLACKBURNE: I shall so order and make that assessment. Anything else?
MR MOULD: My Lord, I have an application for permission to appeal. My Lord, I base the application primarily on the human rights issue. My Lord, all I say is that your Lordship has acceded to my learned friend's submission as to the Inspector's failure to give effect to what is said in the Chapman case about the lack of any obligation to provide an adequate number of sites.
MR JUSTICE BLACKBURNE: Yes.
MR MOULD: My Lord, my submission to your Lordship was based on an alternative approach, which was that the Inspector, far from failing to take account of that, had taken account of that general provision but had in the course of dealing with whether it was proportionate or not in this particular case for the Council to have taken the action they did, whether the balance should be drawn for or against the gypsies. My Lord, in that respect my submission, as your Lordships will recall, was that the Inspector had found in a case where limited harm would result from allowing the caravans to remain, where as a matter of policy, national guidance, on the need to make provision for the needs of gypsies had, on the Inspector's findings, not been given effect to by this Council; that it was disproportionate on balance for the Council to have taken the enforcement action that it did, and to have refused the grant of planning permission.
My Lord, in my submission that alternative submission and analysis of the decision letter, with respect, is arguable; but not only that it raises a wider issue as to the impact of Article 8 in cases such as this, and as to relationship between the point of principle stated by the European Court in Chapman and the guidance given by the British Government as a matter of policy on the objective so far as possible as meeting the needs of gypsies and the consequences that flow in terms of exceptional grants of planning permission in areas that would not ordinarily be considered appropriate for gypsies sites, in the event that that policy objective is not fulfilled.
My Lord, in my submission, that is an issue which has potentially wider practical implications for Councils, such as this Council, who have to deal with claims for sites for gypsies caravans. It would be advantageous for the Court of Appeal to consider, in the light of the approach taken by the Inspector in the present case, what the relationship between the Chapman decision and the domestic policy guidance is, insofar as the application of Article 8 in this type of case is concerned.
My Lord, I say that is both arguable and a matter of some general public importance. My Lord, I appreciate insofar as Dow and Yates (?) are concerned, in the light of what your Lordship said about the overall balance about the simplex test, I would respectfully submit that that would give me overall a generally arguable case on appeal.
MR JUSTICE BLACKBURNE: If I had been with you on Article 8, the balance would not have been quite so easily upset.
MR MOULD: Exactly. I appreciate your Lordship has said that there would be force in my argument, rather than your Lordship would accede to it, but at least, I would say, that takes me over the threshold and their Lordships in the Court of Appeal, assuming they take the same view of your Lordship on that point, I would at least have a realistic prospect of persuasion to the contrary.
Insofar as Eames is concerned, obviously there is a further hurdle in that your Lordship has found against me also on how the Inspector has dealt with his personal circumstances. My Lord, all I say there, and I really reiterate the submission I made in argument, I would say there is at least a realistic prospect, with respect, of persuading the Court of Appeal that my alternative submission, that is to say that Mr Eames is genuinely entitled to take some benefit from the fact that there is a general need for further gypsy site provision in the area of Chicester, whether or not he is somebody who on the evidence has habitually resorted there in the past, because a general need is a general need. To add to that his personal needs, which of course range more widely because of the lack of the strength of his case on the allocation system, insofar as actually securing a pitch, whether one is available or not, is concerned. My Lord, I appreciate that that is a rather narrower point, but I do make the submission that there is at least a genuine prospect of me being able to persuade the Court of Appeal to take a different view in relation to that. Those are my submissions in support of my application for permission to appeal.
MR JUSTICE BLACKBURNE: Thank you.
MR WATKINSON: My Lord, I associate myself with my learned friend's application, and if I may add that if your Lordship is considering whether there is a real prospect of success on appeal, and also whether there is some other reason why the Court of Appeal should consider the matter, and your Lordship I think is considering whether there is at least an arguable prospect that the Court of Appeal might read the Inspector's decision in the way in which the defendants put forward rather than the way which your Lordship has found, I would submit for the reasons that we put forward in the course of our argument there is such a prospect that the Court of Appeal could come to that conclusion. For that, and for the reasons given by my learned friend, Mr Mould, I would associate myself with his application.
MR JUSTICE BLACKBURNE: Thank you.
MR LANGHAM: In my respectful submission your Lordship's judgment is absolutely correct. It is important to bear in mind that this case does not raise points of general importance. It is a question of dividing the meaning of particular sentences in this particular Inspector's report. That I say particularly with regard to the Article 8 point, it is simply a question of working out what it is the Inspector is saying in those sentences on paragraph 69. In my submission, the view which your Lordship has taken is plainly correct and there is no reasonable prospect of the Court of Appeal taking a different view on that, and no point of public importance is raised as a result.
As to Mr Eames, I merely remind your Lordship of the point your Lordship makes that it is quite clear in the Inspector's adding up exercise that he gives Mr Eames the benefit of the finding with regard to the district as well as the points raised in paragraph 62.
MR JUSTICE BLACKBURNE: Thank you. I am not going to give you permission to appeal. You will have to go to the Court of Appeal for that. Thank you very much.