Coyle, R (on the application of) v Kingston Upon Thames

1. MR JUSTICE COLLINS: This is an appeal against a decision of a planning inspector, given on 6th November 2002, whereby she dismissed the claimant's appeal against the decision of the Kingston upon Thames Royal Borough, refusing planning permission. The permission which was sought was the "change of use to residential and stationing of three caravans and portaloos for Gypsy families" on some land, which is in Chessington and is in the Green Belt.

2. The land in question is a rectangular area, some 37 by 60 metres, which used to be part of the playing fields of the Old Wimbledonians. It seems that permission had been granted in July 2001 for a new pavilion on the sports ground with proposed maintenance building and associated access, but that particular permission has never been put into effect. What happened was that a previous owner of the appeal site erected a corrugated steel fence around the perimeter of the site, and deposited materials to form a commercial storage yard. Injunction proceedings were threatened but the land was disposed of and eventually came into the ownership of the claimant. The claimant together with his brother and another family wanted to place on the land mobile homes in which they could live. In due course, if the permission was granted, there would be some works to enable drainage to a cesspool, and the installation of pipes for that purpose.

3. The local authority's response to the application, as appears from their written observations, was to meet this on the basis that it was indeed a application for change of use, albeit, of course, there were already some unauthorised constructions, including the laying down of a certain degree of hard standing on the site. The problem in Kingston is the absence of suitable land to enable sites for gypsies to live on to be provided without a conflict, either with the Green Belt Policy or Metropolitan Open Land Policy. We find in the local plan the relevant policy, CS5, which deals with gypsies and travellers, is in these terms:

"The council will retain the existing travellers' caravan site at Hook Rise. Any proposal for a new site should include provision for basic amenities and services and will be assessed in relation to other policies in the plan, especially those concerned with access, traffic generation, and environmental protection."

Then the explanatory observations in relation to that policy state:

"Given the highly developed nature of the borough, and the large proportion of open land designated as Metropolitan Open Land and Green Belt, opportunities for suitably located gypsy sites are unlikely to arise. Any new proposals should pay particular attention to minimising visual intrusion by the provision of adequate landscaping. Ideally sites should be suitable for mixed residential and business uses."

Then it goes on to refer to "unauthorised parkings of caravans" and that steps would be taken to restrain the re-use of sites which had been affected with this unlawful use.

4. It is clear that since this development was within the Green Belt, it prima facie conflicted with relevant policy in the plan OL1, which dealt with "The Green Belt" and stated:

"Except in very special circumstances approval will not be given for development (other than the change of use of an existing building) within the Green Belt, as defined on the proposals map, for purposes other than:-

1) agriculture and forestry;

2) outdoor sport;

3) cemetries;

4) appropriate residential infill development or a modest extension which does not change the scale of an existing property and where nor more than 25 % of the plot is developed in the form of buildings, garages and hardstandings;

5) other uses which are open in character and appropriate to a rural area."

In addition, it conflicted with the government policy set out in PPG2, which dealt with the Green Belt. It followed that the chances of success in an application such as this would in those circumstances, on the face of things, be somewhat remote.

5. However, since this was an application which related to the housing of gypsies, special considerations came into play. Those special considerations are contained in the Circular 1/94. That is a circular which is headed "Gypsy Sites and Planning", and its main intentions were, as the Circular itself sets out:

"1) ...

-- to provide that the planning system recognises the need for accommodation consistent with gypsies' nomadic lifestyle;

-- to reflect the importance of the plan-led nature of the planning system in relation to gypsy site provision, in the light of ... ('the 1991 Act'); and

-- to withdraw the previous guidance indicating that it may be necessary to accept the establishment of gypsy sites in protected areas, including Green Belts."

It is to be noted that the third point, on the face of it, makes this sort of application for a site within the Green Belt somewhat more difficult. The Circular points out that:

"Gypsies make up a tiny proportion of the population of England and Wales, but their land-use requirements need to be met."

It also points out that the repeal of the statutory duty, placed upon local authorities to provide accommodation for gypsies, makes it all the more important that:

"Local planning authorities make adequate gypsy site provision in their development plans, through appropriate use of locational and/or criteria-based policies."

That is developed in paragraph 12 of the Circular, which reads as follows:

"Local plans and Part II of unitary development plans should wherever possible identify locations suitable for gypsy sites, whether local authority or private sites. Where this is not possible, they should set out clear, realistic criteria for suitable locations, as a basis for site provision policies. They should also identify existing sites which have planning permission, whether occupied or not, and should make a quantitative assessment of the amount of accommodation required. A tradition of sites occupied by gypsies and the demonstration of a local need will help authorities to make proposals for sites in suitable locations."

Paragraph 13:

"As a rule it will not be appropriate to make provision for gypsy sites in areas of open land where development is severely restricted, for example, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest, and other protected areas. Gypsy sites are not regarded as being among those uses of land which are normally appropriate in Green Belts. Green Belt land should therefore not be allocated for gypsy sites in development plans. PPG2 gives guidance on Green Belt policy."

6. Mr Jones also draws attention to the letter of 27th May 1998, sent by the head of the Planning Development Control Policy Division to all planning officers and local planning authorities. That letter drew attention to the continuing failure by many local authorities to include policies for the accommodation of gypsies in their plans, and took the opportunity of reminding them that:

"Compliance with the guidance in Circular 1/94 is essential to fulfilling the Government's objective that Gypsies should seek to provide their own accommodation, applying for planning permission like everyone else."

7. It goes on:

"It is essential therefore, that adequate Gypsy site provision is made in development plans to facilitate this process. I would welcome your support to ensure that this is done. Planning Authorities may also wish to consider whether the absence of such provision may prejudice successful enforcement action against unauthorised encampments, or give rise to grounds for appeal against refusal of an application for a new site."

8. Mr Jones submits that it is quite clear that the policy CS5 does not comply with the Circular because it neither identifies suitable locations for gypsy sites, nor sets out clear, realistic criteria for locations. What it does, in effect, is indicate that there are no locations which are regarded as suitable within the Royal Borough. It is put in the form that "opportunities for suitably located gypsy sites are unlikely to arise" because it makes it clear that any proposal for a new site will be "assessed in relation to other policies", including environmental protection. Clearly, if the problem is that there are no sites regarded as suitable, which do not fall within Metropolitan Open Land or Green Belt, then environmental protection is likely to mean that such proposals would be refused.

9. The submission that flows from that, as we shall see, is that the inspector, in her decision letter, has failed to take that point. Accordingly, she has failed to have regard to the absence of suitable sites, has failed to deal properly, or indeed at all, with the need for such a site, and has failed to have regard to the need of the appellant, as a gypsy, to be able to have a site where he can station his caravans. The relevant guidance in PPG2 should now be indicated. The introduction in paragraph 1.4 states:

"The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development".

Then paragraph 1.5, which is headed "Purposes of including land in Green Belts" reads:

"There are five purposes in Green Belts:

-- to check the unrestricted sprawl of large built-up areas;

-- to prevent neighbouring towns from merging into one another;

-- to assist in safeguarding the countryside from encroachment;

-- to preserve the setting and special character of historic towns; and

-- to assist in urban regeneration by encouraging the recycling of derelict and other urban land."

10. Part 3 of the guidance deals with "Control over development", and 3.1 refers to the "general presumption against inappropriate development within [Green Belts]" and states that, "Such development should not be approved, except in very special circumstances." There is then attention drawn to the particular paragraphs which deal with what development is to be regarded as inappropriate. Paragraph 3.2 goes on:

"Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."

Paragraph 3.4 deals with "New buildings" and provides that:

"The construction of new buildings inside a Green Belt is inappropriate unless it is for [one of five] following purposes:

-- agriculture and forestry ...

-- essential facilities for outdoor sport and outdoor recreation [which incidentally would, no doubt, explain why the permission was granted for the pavilion and so on]...

-- limited extension, alteration, or replacement of existing dwellings ...

-- limited infilling in existing villages ... and limited affordable housing for local community needs under development plan policies, according with PPG3 ... or

-- limited infilling or redevelopment of major existing developed sites ..."

11. If this had been an application which involved the construction of new buildings, then there can be no doubt that none of those five purposes would have been fulfilled. That is, of course, accepted by Mr Jones but he says that this was not an application for the construction of new buildings.

12. One then goes on to paragraph 3.12, which is under the heading "Mining operations and other development. The former is dealt with in 3.11; I do not need to read it: 3.12 relates to "other development", and is really the general approach to developments other than the specific ones referred to in any other paragraph of PPG2. It reads:

"The statutory definition of development includes engineering and other operations, and the making of any material change in the use of land. The carrying out of such operations and the making of material changes in the use of land are inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt."

13. The inspector identified the main issue as being whether the proposed development would be "appropriate" in the Green Belt, and, if not, whether there were any "very special circumstances" to justify the harm from inappropriate development. That is correctly accepted as being a proper indication of what was the main issue. Mr Jones, however, submits that that is not the whole of the main issue, or rather it does not indicate, as it ought to have done, the question that had to be determined, which was because this was an application by a gypsy, the question of need and the question of compliance with the Circular was also something which had to be properly taken into account. The inspector, in paragraph 6, refers to PPG2 and states:

"PPG2, Green Belts , advises that the most important attribute of Green Belts is their openness. New development within a Green Belt is inappropriate unless it is for one of the specified purposes and inappropriate development is, by definition, harmful to the Green Belt."

14. Mr Jones submits that that language suggests the inspector was wrongly regarding the application under 3.4 of PPG2, that is to say, as being an application involving the construction of new buildings, because the specified purposes in relation to development could only apply to that. I am by no means sure that the inspector was intending by those words to refer to building. It seems to me that what she was almost certainly doing, having regard to the way in which the matter was put before her by the parties, was to talk about the specified purposes in the context of the purposes of including land within a Green Belt, that is to say the purposes set out in paragraph 1.5 of PPG2. That would also be consistent with the first sentence of her paragraph 6, which deals with openness, and it is openness which is stated to be the most important attribute in paragraph 1.4. Indeed, one gets there by looking at 3.12, which itself refers to the change of use as inappropriate unless it maintains openness and does not conflict with the purposes of including land within the Green Belt. I accept that the language is not as clear as it perhaps might be, but it seems to me that that must be what the inspector was meaning because, as I say, it was not suggested either by the council or by the appellant at the hearing that it involved the construction of buildings.

15. There has been an attempt by Mr Morshead, who appears on behalf of the Secretary of State, to assert that the inspector did intend to refer to construction because there was an element of construction in the application. I am bound to say that I do not find that in the least persuasive, but it does indicate that perhaps the inspector's wording in paragraph 6 was not as clear as it might be. As I say, it seems to me that if one looks at this as an informed participant, it must be clear that she meant what I have indicated was the meaning of her words.

16. Accordingly, as it seems to me, she was not in any way applying a wrong test. The inspector, in her first paragraph 7, refers specifically to Circular 1/94. She correctly indicates what it provides and notes that it refers to the importance of policies for gypsy site provisions being set out clearly in development plans where it was not possible to identify locations. There should be "clear, realistic criteria for suitable locations".

17. Mr Jones acknowledges that is correct, but says it does not go far enough because again it does not identify the problem which applies here; namely, the failure to comply with the Circular by the relevant plan. In fact, as it seems to me, it would not matter what view one took of paragraph 6 because the decision which the inspector reached, that this was inappropriate development within the definition of PPG2, was a conclusion which was inevitable upon her findings of fact. She did consider, under the heading, "Very special circumstances", the relevant factual matters. She concluded, in three paragraphs numbered 16 to 18, under the heading "Character of the area", as follows:

"17)... the change in the appearance of the appeal site, from one of soft landscape features to a hard-surfaced area, surrounded initially by profile-sheeting, harms the openness of the area ... even if planting were possible, the development creates an urbanised environment in what was part of the undeveloped rural area of the Green Belt."

18. Accordingly, there was, in her view, a clear harm to the openness of the area. In paragraph 18, she decided that this was a "very vulnerable" part of the Green Belt, and that:

"Further development in this area would be perceived as extending the sprawl of the built-up area and would fail to safeguard the countryside from encroachment."

Thus it would harm two of the five purposes of including land in Green Belts set out in PPG2. She decided that it would be "unacceptably detrimental to the character of the area, contrary to [development policy in the UDP.]"

19. In those circumstances, with those findings, she could not have done other than decide that this was inappropriate since it fell directly within what is set out in 3.12; namely, the material changes in use would not maintain openness and did not conform with the purposes of including land within the Green Belt.

20. For reasons I have already given, I do not think there was any error in approach: but even if there had been, it is perfectly clear that the inspector's decision could not have been other than that this was "inappropriate development". The question, therefore, is whether she erred in deciding that there were no "very special circumstances" which applied to permit it.

21. Mr Jones' submission is that she failed to have regard to the conflict between 1/94 and the UDP, and, therefore, that she failed to have regard to a material consideration because she did not properly consider the issue of need. The difficulty with that submission is that the Circular itself, 1/94, was sent out on the basis that it withdrew previous guidance indicating that it might be necessary to accept the establishment of gypsy sites in inter alia Green Belts. It also made it plain that gypsy sites should not be regarded as being among those uses of land which were normally appropriate in Green Belts. Mr Jones emphasises the use of the word "normally" and submits that therefore there must be circumstances in which they might be appropriate. That presupposes that the word "appropriate" there is being used in the precisely the same sense as the antithesis to "inappropriate" in PPG2.

22. It seems to me that is not what is being said. What is being said is that there may be circumstances in which, notwithstanding that it is Green Belt, a development might be regarded as possible because it would fall within "very special circumstances" if there were no other means of meeting the needs of gypsy sites.

23. The inspector considered the individual needs of the appellant and the other two families who were due to live on the site. It was accepted that one of those families had no need. Indeed, quite the contrary; they had the right to use a site in the adjoining Borough of Merton, and they dropped out of the picture. The inspector's conclusions in relation to need were that there were no authorised sites available within the Royal Borough, but apart from the treatment of one child in Kingston Hospital, she considered that the evidence did not demonstrate that the families had strong historical links with or needs for a site within the Royal Borough.

24. The general evidence was that there was a waiting list for the only site within Kingston, but notwithstanding that, the need to provide for gypsies had not been demonstrated within the borough. It was not a problem which the Royal Borough had really had to face. That, as Mr Jones rightly submits, is not the whole point, because even if there may not have been an immediate apparent need, the plan had to look to the future. It could not be assumed that that would always be the situation. The whole point of requiring there to be a provision which catered for needs was to deal, at least in part, with needs that could reasonably be expected to arise. It is submitted that the plan signally fails to do that.

25. It seems to me that there is force in that submission. This plan, on the face of it, is certainly not wholly compliant with the Circular, but that does not mean that this application should be permitted. One still has to bear in mind that this is an application in respect of a site within the Green Belt. 1/94 and the general policies make it clear that it will be indeed a "very exceptional" case that permits such development. One then has to look to see what are the planning objections to this particular development. One finds that the inspector reaches the very firm conclusion that it would be "unacceptably detrimental", and that this is not a site which, in her view, should be permitted on any view of what might be regarded as "very exceptional".

26. It seems to me that she has had proper regard to the needs of this appellant and the families who are affected by this development. She has considered quite properly the effect of this particular development on the Green Belt, and has decided that, in all the circumstances, it is one which cannot be permitted. There is no conceivable reason to suppose that had the policy in the plan been compliant with the Circular, it would have been possible that a development such as this would have been permissible. That is a leap which the appellant seeks to make and which, in my view, it is not proper to make. I see no misdirection in the approach of the inspector. Her reasons for reaching her conclusions are proper reasons and, in my judgment, this appeal must be dismissed.

27. MR MORSHEAD: My Lord, I am grateful. May I invite your Lordship to dismiss the appeal and consider the question of costs?

28. MR JUSTICE COLLINS: Yes.

29. MR MORSHEAD: My Lord, first of all, in principle I invite you to award the respondent his cost.

30. MR JUSTICE COLLINS: Is this a legally aided case, Mr Jones?

31. MR JONES: No it is not, my Lord. There are no objections to the principle of an award. There is a point on which my learned friend and I, or at least our instructing solicitors, differ.

32. MR JUSTICE COLLINS: Let us see whether we can start by agreement. In principle, yes, certainly. In principle, Mr Beard, I would not think --

33. MR BEARD: I make no application, my Lord.

34. MR JUSTICE COLLINS: Right, that gets that out of the way. There is an issue between you as to (inaudible), is there?

35. MR JONES: There is, my Lord, yes.

36. MR MORSHEAD: My Lord, I think there is a real danger that the schedules have not made their way to your Lordship.

37. MR JUSTICE COLLINS: It is indeed a real danger; they have not.

38. MR MORSHEAD: In fact, it is bound to be the case because I am told it has not been lodged, my Lord.

39. MR JUSTICE COLLINS: Well, then that is not surprising. I am always prepared to believe that things get stuck in the office; not on this occasion. (handed)

40. Yes.

41. MR MORSHEAD: My Lord, at the bottom line your Lordship sees --

42. MR JUSTICE COLLINS: £4,463.50, yes.

43. MR MORSHEAD: -- which, applying a general approach, we would respectfully submit is not out of the ordinary. I understand that my learned friend equivocates about one point; namely, the amount of time spent on work on documents, which your Lordship sees on the top of the page, a figure of 13.8 hours.

44. MR JUSTICE COLLINS: Yes.

45. MR MORSHEAD: My instructions in relation to that are that as well as the bundle of documents that your Lordship has seen which constitute the application bundle, a bundle was prepared by the second defendant, which, as things turned out, substantially duplicated what is in the appeal bundle.

46. MR JUSTICE COLLINS: He should not have to pay for that.

47. MR MORSHEAD: I have misunderstood -- the explanation is that the bundle that was originally prepared by the claimant was a very slender bundle, and it was necessary to complete the trial bundle by communication with the second defendant, and that has led to the bundle now before your Lordship.

48. MR JUSTICE COLLINS: What was added, which was not in the original bundle?

49. MR JONES: It is apparent, my Lord, from my time estimates, page 1 of my skeleton argument, the original bundle was 63 pages. It was extended entirely at the request of the second defendant, so that page 64 to 296 -- if I just do my arithmetic quickly -- is 232 extra pages. Your Lordship will recall how many of those 232 extra pages we looked at.

50. MR JUSTICE COLLINS: We looked at three of them.

51. MR JONES: Yes, my Lord. That is the issue and that is the problem. I appreciate it arises from the second not the first defendant --

52. MR JUSTICE COLLINS: There is no reason why you should pay --

53. MR JONES: This is it. Why should a, although not legally aided, far from well-off, claimant pay for 13.8 hours at £142.50 per hour, amounting to virtually £2,000 --

54. MR JUSTICE COLLINS: In principle, I am with you. Let us see if Mr Morshead can -- I mean, they are entitled to some time for looking at documents.

55. MR JONES: Of course they are.

56. MR JUSTICE COLLINS: What do you suggest is reasonable?

57. MR JONES: Well, my Lord, you see the time they have quoted and essentially, doing some quick arithmetic, approaching 70 per cent of the pages, let us say, were unnecessary.

58. MR JUSTICE COLLINS: So knock off 10 hours or thereabouts.

59. MR JONES: Indeed, my Lord.

60. MR MORSHEAD: My Lord, in my submission, it cannot be unreasonable for the first respondent to have considered the documents that form the bulk of the trial bundle particularly as they include --

61. MR JUSTICE COLLINS: Well, yes, maybe; but if they should not have been there and it was not the claimant's fault that they were there ...

62. MR MORSHEAD: Certainly, some of them should have been included.

63. MR JUSTICE COLLINS: What?

64. MR MORSHEAD: One has, for example, the policy documents starting, I think, at page 122, which includes policy OL1, for example, and the reproduction of the policy which is criticised. There is also the witness statement that was relied on by the claimant in front of the inspector below, and the other evidence before the inspector which, in my submission, it must be reasonable for the first respondent to read before --

65. MR JUSTICE COLLINS: No doubt, very reasonable for her to read but that does not mean that the claimant should pay for her reading, if the documents were put in largely unnecessarily and at the behest of the second defendant.

66. MR MORSHEAD: My Lord, the submission, I suppose, is this: if they had not come from the second defendant, they are documents that the first respondent and the Treasury Solicitor would have to have procured from some other source in order to take an informed view about the basis on which it was appropriate, and indeed whether it was appropriate to --

67. MR JUSTICE COLLINS: With respect, no, quite unnecessary.

68. MR MORSHEAD: I will not seek to persuade your Lordship further on that.

69. MR JUSTICE COLLINS: I do not see why they should pay for all that. Inevitably, one has to do a rather rough and ready subtraction, but I am proposing to reduce the sum of £4,463.50 to £3,250. That is a round figure. That means knocking off something over £1,100.

70. MR JONES: Yes, my Lord. I have no further comment on that.

71. MR JUSTICE COLLINS: Does that sound reasonable?

72. MR JONES: My Lord, yes.

73. MR JUSTICE COLLINS: In that case, the appeal will be dismissed with costs in favour of the first respondent to the sum of £3,250. Thank you.