Moss, R (on the application of) v First Secretary of State & Anor

MR JUSTICE COLLINS: This is an appeal under Section 288 of the Town and Country Planning Act 1990 against a refusal of planning permission in respect of eight individual applications on a site in Swavesey, Cambridgeshire. The site in question, which can be described as a large field, was by virtue of the application for planning permission to be used to enable the appellants, all of whom are gypsies, to have a mobile home and up to four caravans on each of the plots in question. They had joined together to buy the field, which was divided into eight plots, and they made individual planning applications, but they were all, for obvious reasons, heard together.

The site in question is described by the Inspector in her decision letter. She calls it an encampment, and describes it as lying in:

When the Inspector visited, there were three caravans on that land.

There are, as I have said, eight separate plots, and when the Inspector visited, it would appear that there were 20 caravans on the site. She indicates that a perimeter earth bank which arose to a height of some 1.8 metres had been created along the frontage of the road, and she records that there were proposals to plant hedging so as to screen the field from the road. However, she records that the existing caravans on the site were very prominent when approaching from the direction of Fen Drayton (that is from the north), and the prominence was emphasised by the site being on a gentle rise in the ground. She also indicates that apart from the mobile homes, there would be a requirement for security lighting and what she describes as "domestic paraphernalia", which would add to the development of the land and would be evident from the north and from the west.

The appellants had in fact entered upon the site in September 2002, and had begun to carry out work laying down hardstandings without seeking any permission from the local planning authority; thus what they were doing was in clear breach of planning law. This led to the service of Enforcement and Stop Notices on 17th and 24th September respectively, and on 9th October, prosecutions were commenced in the local Magistrates' Court for breach of the Stop Notices. Those prosecutions, because of course there are eight different defendants, have been stayed pending the decision of this appeal. Indeed, the decisions to serve the Stop Notices and to prosecute have themselves been challenged by judicial review, the claim having been issued on 16th December 2002. Permission was refused on the papers, but there has been a renewal sought. That has again been stood over pending the determination of this appeal.

The applications for planning permission were originally lodged on 13th September 2002 and were refused on 22nd November. The public inquiry in respect of the appeal took place on 30th April, the decision of the Planning Inspector was given on 19th May and this appeal was entered on 27th June.

The development which was requested was contrary to various policies in the local plan. There are restrictions on development in the countryside, and gypsy caravan sites are not included as developments which would normally be acceptable. However, there are special policies which relate to gypsies. There is a policy in the structure plan, namely SP4/6, which requires that adequate provision is to be made for gypsies who reside in or resort to the county through the local plan process. The relevant process in the local plan, that is to say the South Cambridgeshire local plan deposited in 1999, is policy HG29. This reads:

I do not think I need to read 7, it is not material.

There is then, in the following paragraphs of the plan, a narrative which expands to some extent on the policy. In paragraph 4.92, this is said:

Then 4.95:

In October 2002, there were proposed modifications to the South Cambridgeshire local plan. There was a revision of the title of HG29 which was to read, "gypsies and travelling show people", that is perhaps not of great materiality, but there was an additional criterion to be added in HG29 which was that:

That, again, is not of great materiality in the context of this case.

The government issued a circular in relation to gypsy sites and planning, that is Circular 1/94 of 5th January 1994. That was as a result of the revised policies in relation to the planning control of gypsy caravan sites, the change of policy resulting from the abolition of the duty upon local authorities to provide sites for gypsies. It is not necessary to read much of that circular; suffice it to say that it recognised that the proposed repeal of that duty was expected to lead to more applications for private gypsy sites, that there was a need for local authorities to meet the requirements of gypsies, and that local planning authorities needed to be aware of the accommodation and occupational needs of gypsies having regard to their statutory duties including those in respect of homelessness.

In paragraph 8 there is reference to the need to set out land use policies and proposals for fulfilling initially the duty in relation to gypsies, but it goes on in this way in paragraph 9:

It is made clear that policies should be set out in sufficient detail so as avoid the potential for disagreements.

Then under the heading, "Provision and location of sites", the circular indicates that:

There was a need to consider locations outside existing settlements but within a reasonable distance of local services and facilities. Sites on the outskirts of built up areas might be appropriate, but care must be taken to avoid encroachment on the open countryside, and care needed to be taken to ensure consistency with agricultural and countryside policies. Sites must also be identified having regard to highways considerations.

In paragraph 20 there is an indication that advice and practical help should be given to gypsies in order to encourage private site provision, and they should be encouraged to consult authorities on planning matters before buying land on which they intended to camp, and for which planning permission would be required.

Paragraph 21:

As is obvious, the circular is concerned with countrywide policy, but the local planning authority is of course concerned with its area. Nonetheless it must, through the local plan, and if the local plan does not do it expressly, because of the requirements in relation to gypsy, give special consideration to applications by gypsies. That is indicated in the circular.

It is submitted by Mr Maurici that the policy to which I have already referred in the local plan does carry out the general requirements which are set out in the circular, and indeed it reflects what I have already referred to in particular in paragraphs 12, 13 and 14 of the circular.

The reference to need is clearly appropriate, particularly if there is to be a prima facie breach of planning policies, as there will often be, and in this case clearly were in relation to the application to have the caravans and the mobile homes on this site. It is obviously necessary that consideration be given to need, because if there is no need, then that will inevitably be a good reason for not permitting the development in question. Equally, if there is a need, that is a matter which will have to be taken into account.

Mr Watkinson, if I correctly understand the submission on this head, suggests that the Inspector ought expressly to have had regard to and indicated that she had had regard to national need, or need more generally outside the confines of South Cambridgeshire, or indeed to the county of Cambridgeshire, in deciding whether this development should go ahead.

I should now turn to the Inspector's report and deal with the various grounds which have been specifically raised. There were originally five in number. A sixth was added, and it was referred to in the claim form, although perhaps not quite as specifically as a ground as would have been desirable.

One of the grounds was not pursued in the course of the hearing, and I need say no more about it.

The first ground, which I have already touched upon, is a submission that the Inspector did not consider the national need for gypsy caravan sites as an independent material consideration. The answer to that is that it is true that she did not in terms spell out that she had had regard to the national need, but she did say that the council acknowledged that there was an un-met need. She then went on to consider the case in the context that there was such a need.

It seems to me that that was quite sufficient when one bears in mind, as I have said, that the national policy is inevitably countrywide, but the local planning authority has to consider the matter within its local area, and within that area there was undoubtedly and was accepted to be a need. If, for whatever reason, in a particular area, very few gypsies seem to want to settle, it is not incumbent upon that authority to provide for an unrequired number of gypsies. If there is no need then there is no obligation, quite obviously, to provide sites. It is only if there is a need and a need defined locally that such a requirement comes. Accordingly, as it seems to me, there is nothing in that ground.

The next ground is that it is said that having found that the main objection for the development was the number of caravans, the Inspector failed to consider a condition limiting the numbers.

The application was, as I have already said, for four caravans and one mobile home on each of the eight sites, making a total of 32 caravans plus eight mobile homes. There is a dispute of fact that arises in connection with this ground. In the course of her decision letter, the Inspector says this, at paragraph 11:

It is apparent from that that there must have been some discussion at the inquiry which showed that the proposals for a total of 32 had been or could be whittled down to 24. However, Mr Cox, who was the solicitor representing the appellants at the inquiry, has lodged a statement in which he says this, at paragraph 12:

He indicates in his statement that the Inspector had before her individual written statements from each appellant, and that each provided further information which confirmed their need for a settled site, either due to the need for their children to be educated or because of problems caused by health or age.

The Inspector has produced a statement which was lodged late, and in those circumstances, Mr Watkinson objected to my receiving it. However, despite its lateness, it was clear that it did not contain anything which put him at a disadvantage in the sense that it required some answering from his side or raised some point with which his side had not been able to deal. What it does do is to contradict the evidence given by Mr Cox to which I have already referred, because what the Inspector says in this statement is that she did consider the question of a possibility of a condition limiting numbers. She says that in discussing conditions, she went very carefully through the minimum number of caravans each plot owner would require, and the appellants' solicitor, she says, did not suggest that these be restricted to only one unit. She then gives the numbers that she identified, and in fact those numbers add up to the 24 which appears in her decision letter.

She concludes as follows:

I am not, of course, in a position to resolve the issue. However, it seems to me (and I would have approached the matter in this way even without the evidence of the Inspector) that I must rely on what is in the decision letter. Accordingly, whether or not Mr Cox did indicate as he says he did in his statement, it is plain that the Inspector did not appreciate that that was what was being said.

Certainly I accept (and indeed Mr Watkinson very properly does not seriously contend that this may not be correct) that the individual appellants did give the minimum that they considered was appropriate in each of their individual cases. What may well have happened is that Mr Cox, perhaps realising the difficulties in relation to numbers, was wanting to suggest that there could be a reduction below those which each appellant had him or herself indicated was his or her minimum requirement. If that is what he was submitting, then as I have said, he clearly failed to get through to the Inspector that that was what he was suggesting.

In those circumstances, it seems to me that any alleged failure to consider a condition limiting the numbers to the extent that Mr Cox suggests in his statement is not something which I can accept on the material that is before me.

I now turn to what I consider to be the most difficult ground. It is said that the Inspector failed to consider in detail the personal circumstances of the occupiers of each pitch who were separate appellants, and so failed to put their circumstances properly in the balance.

What is essentially being submitted is that if the Inspector took the view that the total number of caravans and mobile homes was excessive, she should have considered the personal circumstances of each appellant individually and have decided that perhaps the circumstances of one or two were more compelling than the others, and so have allowed those one or two or perhaps more, so that there would have been a smaller number on the site and that smaller number would not have had the impact on the amenities that led her to dismiss the appeals. It is suggested that when one looks at her determination, her decision as a whole was concerned too much with the global effect of the proposals and did not therefore properly consider each individual proposal on its own merits. Although of course she could not ignore the totality, she should have considered whether if not all, at least some might have been able to receive permission.

That involves looking in a little more detail at her decision letter. She records the main issues (there is no complaint about this) as:

The drainage considerations fall out of the picture, because she accepted that they were capable of being dealt with.

The highway considerations I can deal with very shortly. She did find that there were highway safety problems. She did not think that they could be dealt with entirely satisfactorily, because there were visibility problems with the access to the site and therefore there was a breach of the policy HG29(5), but that was on the basis that adequate visibility displays would, in her view, not necessarily be maintained, because the land to the east was outside the appellant's control, and so it was necessary that it be ensured that the relevant hedges were cut back sufficiently to enable proper sight. So there was a highway safety concern in relation to this site, quite apart from the other matters.

However, it was not a matter which was necessarily incapable of being dealt with. The Inspector was merely not satisfied that it could be dealt with because, as I have said, the land in question was not under the control of the appellants. Otherwise it might have been possible to make some arrangement with the holder of the land in question.

The Inspector then refers to the policies. I have already covered that. She then describes the character and appearance of the site, and in paragraph 12 she says this:

Pausing there, it would appear from a subsequent paragraph in her decision letter that when she visited, which was on 30th April 2003, there were some 20 caravans on the site. She goes on:

It is perhaps of some importance to note that there she indicates that it was the number of homes and caravans that were proposed that appears to have persuaded her that planting would not adequately overcome the impact.

She then goes on to consider personal circumstances which are highly material in gypsy cases, because the need to provide for the requirements of gypsies is something which can, in appropriate cases, override what otherwise may be considered to be planning objections to the proposals.

She refers to the lack of other sites, and she continues in paragraph 16:

Although there is in that paragraph a reference specifically to one of the appellants, who had a base in Cheshire, the approach appears to be that it is again the numbers which have led the Inspector to come to her general conclusions.

There is then paragraph 18 which is the key paragraph in relation to this ground. It reads as follows:

Mr Watkinson submits first that the summary that the Inspector gives of the individual personal circumstances is inadequate, that she simply refers broadly to education of children and care of elderly relatives.

In reality, those were the most important of the personal circumstances, and indeed, I go back to Mr Cox's statement which reflects just that. He says in paragraph 6 of his statement:

Those indeed were the two main issues. Then in paragraph 10, he says this:

It is perhaps not uninteresting to note that Mr Cox's summary of the personal circumstances of importance are precisely those of the Inspector, and that undoubtedly was the way in which the matter was put to the Inspector. Accordingly, in my view, particularly having regard to the fact that this decision was a decision which was given to people who appreciated what the issues were, had been at the enquiry, and knew that the Inspector had not only had before her their statements but had had the submissions made on their behalf by Mr Cox, the Inspector accurately summarised the main personal circumstances.

The main point made relates to numbers. Before coming back to paragraph 18, I should just refer to one or two other material matters in the decision letter. The Inspector deals with highway safety, I have already referred to that, and to drainage, and then in paragraph 23 she deals with other matters. Paragraph 23 is concerned with the Human Rights Act, and in it, she says:

In paragraph 27, under "Conclusions," she says:

It is of course trite law that in approaching and considering decision letters, the court should not look on them as if they were statutes. They must be construed in a reasonably flexible manner. One must obviously read them as a whole. It seems to me that a fair reading of this Inspector's report does indicate that what on the face of it really concerned her was the numbers of caravans and mobile homes that would be on the site as a result of these proposals. She believed apparently that the minimum was 24 caravans plus eight mobile homes. Indeed, those are the numbers that she specifically refers to in the course of her decision letter.

The complaint made is that she did not consider the possibility of allowing some but not all the individual applications. Mr Cox, in his statement at paragraph 16, makes it clear that he did raise this issue. He says:

Mr Maurici submits that in paragraph 18, the Inspector was considering the matter on the basis of individual applicants. He says that the first sentence of paragraph 18 makes that clear, when she says:

So far, so good; she does appear to be saying that. But the next sentence but one reads:

Mr Maurici emphasises the use of the words "on each site" and submits that what the Inspector was doing was to say to herself: it is not possible to agree that up to four caravans is necessary for each site. That is too many. Therefore, I am not going to allow the individual proposal. That, despite the fact that on two of the sites, when one goes back to the reference to 24 instead of 32, an applicant was agreeing that only one caravan would be all that was essential.

It seems to me that one has to read paragraph 18 in isolation in order to achieve the result that Mr Maurici contends for. The whole of the decision letter, when fairly read, suggests that what led the Inspector to reject the appeal was, in the main, numbers. It may be that considerably fewer numbers, or it may be that even one caravan per site or the existence of a site at all would have led her to dismiss all the appeals, but it is difficult to be sure what the result would have been if she had asked herself whether it would be possible to allow some of those whose personal circumstances were the most compelling, for example, those who had children who were attending local schools and whose education would inevitably be disrupted if they had to move on.

There was a caravan in the adjoining field, and the Inspector herself refers to a recent planning permission, although it is not clear where that was, where four mobile homes and four caravans and four toilet blocks had apparently been permitted on the basis of one caravan per mobile home.

She did perfectly properly take into account the fact that the occupation was, from the outset, unlawful, and that is of course an important factor in considering what weight should be attached to personal circumstances such as education and caring for the elderly. Nonetheless, that does not in itself preclude the possibility of granting permission.

I do not find it possible to read paragraph 18 in the way that Mr Maurici submits. It seems to me that the third sentence is to an extent not compatible with the first, and that the Inspector has been looking at the matter globally and has not been considering the possibility of granting one or more of the individual applications so that the site would not be over-endowed with caravans and mobile homes to the detriment of the amenities. That being so, it seems to me that the decision is flawed in that respect.

The other two grounds relied on are Human Rights grounds. I can deal with them very quickly. Mr Watkinson submits that Article 8 of the Convention was in play; indeed, it was. The Inspector accepted that there was an interference with the appellant's home and family life. However, she went on to indicate that for the reasons she had given in considering the planning matters, the appeal proposals would be harmful, and she was satisfied that the legitimate aim which the planning requirements provided for could only be safeguarded by refusal of permission. It seems to me that that was in principle a perfectly proper balancing exercise that the Inspector carried out.

Mr Watkinson submits that she should have carried out that exercise when she was considering the planning matters; that the whole should have been dealt with at the same time. That is an interesting submission in the light of submissions referred to in other cases; that it was wrong to regard Article 8 and planning merits at the same time.

As it seems to me, the reality is that in the vast majority of cases the approach of the planning issues, particularly the personal circumstances, and the balance to be applied is the same as that which will be applicable in connection with Article 8. So here, with the added factor that coming unlawfully to create the family life is something which carries weight against the appellants.

The final matter is education. It is submitted that insufficient weight was attached by the Inspector to the educational requirements of children. That would be a breach of Article 2 of the first protocol to the Convention and also, it is suggested, a contravention of the Education Act.

There is no suggestion that the right to education is in any way removed. Equally, the duty of the local authority to provide education wherever the appellant's families may be will continue to exist.

I recognise of course that there will be difficulties created for children if they have to move from site to site, and that is something which is obviously detrimental to their education, but such movement does take place regularly in gypsy families. The less it can interfere with children's education, of course, the better, but equally it is a factor which is to be taken into account when considering the personal circumstances, and that the Inspector has done.

She is criticised for using the word "desirable". That is said to be far too weak in considering questions of education. However, it seems to me that the Inspector has quite clearly and properly considered the question of education as one of the personal factors. In my judgment, it does not stand out as being something which has to be considered on its own, or which on its own can be said to create either a breach of the Convention, or of the Human Rights Act, or of the Education Act.

However, for the reasons that I have given, it seems to me that I ought to grant relief based on the failure by the Inspector properly to consider the issue of individual applicants and whether fewer than eight might result in permission.

Now, Mr Watkinson, what had occurred to me, and it is a matter I would like to hear you on, was that I could send this back to the Inspector to make specific findings on those issues. On the other hand, you might say that you would want to have further evidence considered and the other point on which the issue was put beyond any doubt; that is to say whether smaller numbers overall of caravans and/or mobile homes would be acceptable.

MR WATKINSON: My Lord, I think what I would ask for is that the decision be quashed and be remitted to the Secretary of State.

MR JUSTICE COLLINS: I suppose the answer is it is a matter for the Secretary of State to decided how he deals with it when it is quashed, but I can give some indications, I think, if it is appropriate.

MR MAURICI: My Lord, Section 288 is a bit odd, because it is the power to quash, and obviously by quashing it, it will automatically be remitted. My Lord, the Secretary of State's practice is always to appoint a completely different inspection.

My Lord, the preference of the Secretary of State would simply be for your Lordship to make an order quashing this decision under Section 288 and then the consequences would be a matter for him.

MR JUSTICE COLLINS: I think that is right. I was only thinking aloud. I wondered whether there was a short circuit of this case.

MR WATKINSON: My Lord, there are the costs of the application.

MR JUSTICE COLLINS: They follow the event.

MR MAURICI: They do. I would ask your Lordship to make a reduction in principle for two reasons; one because obviously Mr Watkinson succeeded on only one of six grounds.

MR JUSTICE COLLINS: True, but I am not sure, was there anything much additional because there was more than one good ground?

MR MAURICI: My Lord, obviously each ground had to be dealt with, the legal submissions that were made, and most of the authorities which are before your Lordship were made on grounds other than the one succeeded on.

My Lord, the second reason why I say there should be a reduction; clearly the costs would have involved the costs of putting together the two lengthy bundles to which we referred to only a very small portion. Your Lordship referred to the documents.

MR JUSTICE COLLINS: That I do have a lot more sympathy with. I think there should be some reduction. Is that a matter which will be dealt with on the detailed assessment?

MR WATKINSON: It could.

MR JUSTICE COLLINS: I could indicate, and I do, that I think there was a lot of unnecessary material in the bundles and I do not think that it would be appropriate for the claimants to have all the costs involved in the preparation of the bundles and so on, and any extra costs that are incurred on your side by having to go through the unnecessary parts of the bundles should not be allowed. That, as it seems to me, is a matter for the detailed determination as to what that means in pounds and pence.

MR MAURICI: Yes, my Lord. Is your Lordship open to making an order for a reduction?

MR JUSTICE COLLINS: I had better hear Mr Watkinson on the other point. Mr Watkinson, I am sorry, I did not hear you on that, but of course, if you want to say anything to make me change change my mind on that, that is to say the bundle. I do think, I am afraid, that whoever was responsible did not take sufficient note of what Sullivan J in particular has said, and indeed as a matter of common sense there was much more in the bundles than was necessary.

MR WATKINSON: I will not take that any further because, as your Lordship says, it can be dealt with under detailed assessment. We will make an application for the costs and will be instructing --

MR JUSTICE COLLINS: I have said what I have said. It is a matter that they can rely on if they see fit.

MR WATKINSON: Indeed, as to the first, we had to come to this court in order to get the response that we got, and all points, including the point on which we succeeded, were argued before your Lordship and they failed at the crux of that particular point.

As far as the other points are concerned on which I did not fail; one I withdrew, the point in relation to numbers referring to numbers and I think to Ground 3, the consideration to whether it had been put to the Inspector that reduced numbers were requested for each site, was defeated essentially by evidence that came late. The other points were matters of law which are the subject of comparatively short address, and they were dealt with very quickly.

MR JUSTICE COLLINS: We are told, are we not, much more than ever we used to be, to be concerned to split costs accordingly. Not long ago, you would have had the costs and Mr Maurici would not even have dared to argue that there should be a reduction, but the newer practice is rather more, is it not, to try to reflect the time that was spent on the arguments which failed against those which succeeded. My view always has been, and I think this accords again with the authorities, that much greater weight is attached to the fact that you have succeeded, ie you have taken account of the fact of success, and that gives you a perhaps rather greater proportion. You then go on to consider what, if anything, should be deducted because of the issues on which you failed. That I have always thought is the right approach, rather than simply trying to add up: you have taken six points, you have only succeeded on one, therefore you only have one sixth of your costs. That is not the correct approach.

MR WATKINSON: I follow that. All I can say is that varying degrees were lost --

MR JUSTICE COLLINS: Are you legally aided? That is not relevant to this aspect.

MR WATKINSON: I would be asking for a detailed assessment of the costs incurred.

MR JUSTICE COLLINS: Of course, you will have those in any event.

MR MAURICI: My Lord, I accept that the formulation your Lordship has put is right; that because the claimant has succeeded, they are entitled to a portion of their costs; the question is what, if any, reduction should be made. My Lord, I do not suggest that because the claimant raised six grounds, the order should be one sixth of the cost. I say that given that there were five grounds that failed, clearly the hearing could have been much shorter indeed. My Lord, I say that in those circumstances a fair reduction would be 25 per cent of the costs removed, so the claimant would therefore be entitled to 75 per cent of the costs.

MR JUSTICE COLLINS: Do you want to add anything, Mr Watkinson?

MR WATKINSON: I do not think I want to respond to that.

MR JUSTICE COLLINS: Funnily enough, that was actually what I had in mind in any event. I proposed to order you 75 per cent of your costs.

MR WATKINSON: In any event, I will not trouble you.

MR JUSTICE COLLINS: A detailed assessment, and you can have the necessary orders in relation to the delay.

MR MAURICI: My Lord, can I trouble you on two more points. One is permission to appeal. My Lord, it has to be on the basis that I would be able to persuade the Court of Appeal that the approach of your Lordship --

MR JUSTICE COLLINS: This is looking at the decision letter. You have to apply, I understand, but you will not be in the least bit surprised to be refused.

MR MAURICI: The other thing I have to ask my Lord, could I ask for an extension of time in relation to the Court of Appeal to 28 days after the transcript is available. My Lord, the reason I say that is in these cases, various consultations have to take place.

MR JUSTICE COLLINS: Since everything is held up until this matter is disposed of, it is not going to be any damage to your clients if that time is extended, is it?

MR WATKINSON: No, my Lord, I have no objection to that.

MR JUSTICE COLLINS: Yes, you can have that.

MR MAURICI: Twenty-eight days after the transcript is available. Thank you, my Lord.

MR JUSTICE COLLINS: In those circumstances, we had better have the transcript as soon as reasonably possible.

Mr Maurici, as you know, I have to fill in a form for the Court of Appeal. What I have said is: "Construction of an individual decision, no point of law arises, merely application existing principles".

MR MAURICI: Thank you, my Lord.

MR JUSTICE COLLINS: Thank you both.