Smith v First Secretary of State & Anor

MR JUSTICE SULLIVAN: Factual background

This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of one of the first defendant's inspectors dismissing the claimant's appeal against the second defendant's refusal of planning permission for a gypsy caravan park for four families (12 caravans) and access arrangements at Woodside Caravan Park, Hatch, Northhill, Bedfordshire ("the site"). The inspector's decision is contained in a decision letter dated 23rd July 2004.

Since the site had been used as a gypsy caravan park since 1998, the inspector treated the appeal as being made against a refusal to retain the four plots on the site which were occupied by four family groups.

Woodside Caravan Park comprises two parts: the back or northern field and the front or southern field fronting onto Hatch Road. Access from Hatch Road runs through the southern field to the northern field. The inspector summarised the lengthy planning history of the site in paragraph 17 of the decision letter. So far as relevant for present purposes, the history is as follows. The most recent occupation of the site by gypsy caravans began in 1998, when caravans were brought onto the site and various works, such as the construction of hard-standings and roadways, were undertaken. On 1st October 1998 the Council served an enforcement notice, stop notices were also served, but development continued and resulted in a layout of some 27 plots. Appeals were made against the enforcement notices and in a decision letter dated 29th June 1999 an inspector dismissed those appeals and upheld the enforcement notice. In so doing, the inspector extended compliance with the notice to a period of 12 months and suggested that consideration should be given to the possibility of approving a smaller site with substantial additional landscaping.

In a decision letter dated 8th January 2001, an appeal relating to 22 pitches on the site was dismissed. The inspector concluded that the site was a noticeable and incongruous feature in the countryside and on a scale that would not be small enough to avoid harm to the countryside. He felt that it would be possible to meet some of the need for gypsy accommodation in the district by what he called a "genuinely smaller scale gypsy site".

In due course applications for planning permission were made to retain 11 plots on that part of the site comprising the northern field. Those applications were refused. There were further appeals, and in a decision letter dated 20th June 2002 those appeals were dismissed by the Secretary of State following an inspector's report. In his decision letter, the Secretary of State said that he shared the inspector's view that a reasonable interpretation of a "much reduced site" could be a caravan park on the southern field forming a limited extension to Hatch and screened behind substantial landscaping but, the Secretary of State said, significantly different considerations applied to the northern field.

In June 2002 the High Court granted an injunction requiring the removal of all of the occupants from the site, both the northern and the southern fields. The injunction was to come into effect on 1st November 2002, but so far as the southern field was concerned a stay was granted pending the outcome of the appeal which is the subject of this application.

By the time the inspector considered the appeal at an inquiry held between 30th March and 1st April 2004, the occupants of the northern field had been removed and all of the plots had been cleared, with the exception of one of them.

In paragraph 19 of his decision letter the inspector identified six main issues: whether the continued use of the site as a gypsy caravan park would (i) unacceptably spoil the character and appearance of the countryside, or; (ii) harm the amenities nearby residents might reasonably expect to enjoy, or; (iii) undermine important policy aims relating to the provision of sites for gypsies, or; (iv) exacerbate flood risks, or; (v) meet a need for further gypsy sites that should be met here, or; (vi) meet the special needs of specific gypsy families.

He then discussed those issues in paragraphs 20 to 61 of a very full and thorough decision letter. It would unduly extend the length of this judgment if I was to set out the inspector's conclusions in extenso. Instead, I propose to refer to the relevant extracts, and they will necessarily be highly selective extracts from this lengthy decision letter, when I consider Mr Willers' submissions on behalf of the claimant.

Mr Willers challenged the decision letter on nine grounds. For the reasons set out below I am satisfied that none of those grounds is well-founded. I will deal with each ground in turn.

It was submitted that the inspector erred in taking account of the local residents' fear of crime when there was no evidence to suggest that their fear was justified. It was accepted that fear of crime was capable of being a material consideration: see, for example, West Midlands Probation Committee v Secretary of State for the Environment and Walsall Borough Council [1997] JPL 323. Initially it was submitted that fear of crime only be a material consideration only if it was objectively justified; it could not be based upon a generalised fear.

In his submissions before me Mr Willers acknowledged that this submission was contrary to authority: see Newport Borough Council v Secretary of State for Wales and Browning Ferris Environmental Services Ltd [1998] Env LR 174. Mr Willers sought to distinguish the Newport case on the basis that the residents' fears were caused by the nature of the use itself - a chemical waste treatment works - rather than the users. In the Walsall case local residents were concerned about the users of the bail or probation hostel, but those users would, by definition, have been either convicted or at the very least accused of criminal offences.

In the present case, while there had been evidence of criminal activity related to the period of time when the northern field was occupied by large numbers of caravans, it was submitted that police visits had virtually ceased since the northern field had been cleared, and there was no evidence that any of the occupiers of the caravans on the four plots on the southern field had been involved in criminal activity.

Thus, it was submitted that the inspector should not have placed any weight on residents' fears of crime unless there was clear evidence that crime was likely to occur, and there was no such evidence.

Mr Willers referred to the discussion under the subheading "Public concerns about safety" in paragraph 70.39 of the Encyclopaedia of Planning Law and Practice. In that discussion the editors make the point that "there is a very thin line between unjustified local fears and pure prejudice including discrimination on racial or other unlawful grounds". Given the lack of any evidence that the occupiers of the four plots had been involved in any criminal activity, it was submitted that that fine line had been overstepped in the present case.

I do not accept that submission. The inspector considered this issue under the subheading "Residential amenities" and said this in paragraphs 27 and 28 of his decision letter:

On the basis of that evidence, the residents' fears in the present case could not possibly be said to have been unjustified; much less could they sensibly have been described as pure prejudice. Although the number of incidents had substantially decreased, they had continued. Even though the inspector recognised that there was nothing to link any incident with the appellants on the four plots, he was entitled to say that "the continued occurrence of incidents involving the police provides some grounds for residents to remain apprehensive about the prolonged existence of this gypsy caravan site", and that "the limited level of occurrences that now persists seems to me to be well in excess of what might ordinarily be expected in a small rural hamlet such as this".

To the extent that Mr Willers' submissions rely on the fact that there was nothing to link any incident with the appellants, unless a personal planning permission was granted, planning permission for the use of the site as a gypsy caravan site to accommodate 12 caravans would run with the land. Thus, residents' fears could not be allayed by reliance upon this argument.

It was submitted that the inspector erroneously took account of the fact that the commercial use of the land immediately to the west of the appeal site, for the purpose of training greyhounds, had been affected by the use of the appeal site by the claimant and others as a gypsy caravan site. It was said that the inspector was erroneous in this respect because policy H011 of the local plan protected only residential amenity rather than commercial activity.

Policy H011 provides that proposals for the development of new gypsy sites will be expected to conform with certain criteria. Criterion (iii) is as follows:

This complaint stems from what the inspector said about Drovers Cottage in paragraph 26 of the decision letter:

In my judgment, this complaint sets up an aunt sally for the purpose of knocking it down. The inspector did not say that the loss of the ability to train greyhounds on the land adjoining Drovers Cottage in some way conflicted with any of the criteria in policy H011. It is perfectly true that he dealt with this issue under the subheading "Residential amenities", but Mr Willers accepted that the inspector was entitled to take into account the effect on Drovers Cottage, and entitled to take into consideration the fact that it was no longer possible to train the greyhounds on the land adjacent to the cottage. He submitted that although the inspector was entitled to put this matter into the balance, he placed it into the balance in the wrong place.

It is far from clear just how far the training of the greyhounds was a commercial activity, as opposed to simply a hobby, but in any event the inspector was perfectly entitled to adopt a common sense approach to this matter. He was entitled to look compendiously at the effect of the adjoining use upon the enjoyment of Drovers Cottage, and entitled to take the view that given its location in what would otherwise be open countryside, the owner of that property might have expected to be able to continue to train greyhounds on the adjacent land. It is of no consequence whatsoever that he considered the matter under the heading of "Residential amenities" rather than under some separate heading, "Adverse impact on a local commercial activity", if indeed that is what the activity was.

It is submitted that the inspector erred in taking account of the risk that the northern field might be the subject of further unauthorised occupation if permission was to be granted for the use of the southern field as a gypsy caravan site. Such an unlawful use of the northern field could occur in any event, whether or not planning permission was granted for the use of the southern field, and in any event such use of the northern field could be "effectively controlled by the use of planning enforcement measures".

It might be thought that this case, where caravans have remained unlawfully on a site since a stop notice was served over six years ago at the beginning of October 1998, is a good illustration of the difficulty in effectively controlling certain uses of land by means of the enforcement powers in the Act. However that may be, the inspector dealt with this matter in paragraphs 29 and 30 of the decision letter saying this, after having dealt with the residents' concerns about crime:

I can detect no possible error in that reasoning. At one point Mr Willers submitted that the access road would remain in any event whether or not permission was granted for the use of the southern field, but that submission cannot be right in the light of the inspector's conclusions in the decision letter dated 29th June 1999. At that inquiry it had been argued that the enforcement notice did not require the removal of the road; alternatively that the Council was estopped from taking action against development which was said to be consistent with the implementation of a planning permission which had been granted in 1990. The inspector considered both of those arguments and rejected them. He therefore dismissed appeals against the enforcement notice on grounds (b) and (c) (see paragraph 23 of that decision letter).

In any event, as a matter of common sense, and bearing in mind that the planning permission before this inspector sought permission for "access arrangements", retaining the access with permission for the use of the southern field by 12 caravans would give grounds for apprehension, given the past history of the overall site, that the access might be used once again to gain access to the northern field.

It is true that the unlawful use of the northern field could recur even if no planning permission was granted for the use of the southern field, but the inspector did not suggest otherwise. He merely concluded that, for the reasons given in paragraph 30, local residents were entitled to be apprehensive that that possibility of the use of the northern field would be rendered more likely if planning permission was granted for the use of the southern field as a gypsy caravan site, and he concluded that this apprehension would "in itself harm the amenities that residents might reasonably expect to enjoy in a small rural hamlet like Hatch". Given the arguments which had been advanced in the injunction proceedings, the inspector was fully entitled to reach that conclusion.

It was submitted that the inspector erroneously took account of the fact that the site had been occupied unlawfully before planning permission had been sought by the claimant. It was contended that the claimant and the other appellants had not relied on their period of occupation of the site as part of their hardship case. It was further submitted that the mere fact that a development is in breach of planning control and that an application for permission is made retrospectively cannot, of itself, be a material consideration militating against the grant of permission.

Mr Willers referred to the speech of Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] UKHL 33 at paragraph 52:

This complaint is advanced in the context of what the inspector said in two paragraphs of the decision letter, paragraphs 32 and 57. In paragraph 32 the inspector was considering policy aims and the provision of sites for gypsies, and he said this:

In paragraph 57 the inspector was setting out his conclusions on the planning issues. He said this:

Dealing with the first of those two paragraphs, it is difficult to see how the inspector erred in saying that "if the mere purchase of some bit of an isolated field could serve to justify the establishment of a gypsy encampment", such an approach would undermine the aims of Government policy, viz the emphasis on a plan-led approach to gypsy site provision. In that passage the inspector was saying no more and no less than that, and he was fully entitled to reach that conclusion. Self-evidently, any plan-led approach to gypsy site provision would be undermined if the mere purchase of an isolated field could serve to justify the establishment of a gypsy encampment.

Turning to the second passage complained of, it will be noted that the inspector correctly directed himself: "it is not normally material to the merits of an application that it may relate to unauthorised development". He then considered whether that normal rule should apply on the facts of this particular case. Considering the evidence relating to "this site", he considered the way in which it had been established and the terms on which it had been occupied and concluded that they had contributed to the problems which he had identified elsewhere in the decision letter.

It will be recalled that this being an application to retain a gypsy caravan park, experience of what had occurred in the past was plainly material. Thus, if in practice the existence of a gypsy caravan park on the land had caused no problems, it would be right to contend that the mere fact that it had been established unlawfully would not be a ground for refusing planning permission. But the inspector's approach was the very antithesis of the error that the claimants attribute to him: the error of assuming that the mere fact that an application for planning permission is made retrospectively is in some way a reason which militates against the grant of planning permission. The inspector said in terms that the fact that an application relates to unauthorised development would not normally be material. He then went on to explain why he considered it was material upon the particular facts of this case. He was fully entitled to do so.

The submission that the claimant and his fellow occupants of the front field did not rely upon their long period of residence on the site in order to assert that their removal from the site would cause them particular hardship is wholly artificial. Insofar as the inspector was invited to consider the claimant's personal circumstances and the occupiers of the southern field's rights under, in particular, Article 8 of the European Convention on Human Rights, it is plain that the occupiers of the southern field were relying upon the fact that, for example, some of the children had become settled in school. They were also relying to a lesser extent upon local ties, such as attendance for medical treatment, and contending that there would be disruption in that respect. They were not inviting the inspector to consider their hardship cases upon a wholly artificial basis: what hardship would there have been if they had been on site for a substantially shorter period of time than they had in fact been there? The inspector was obliged to deal with the cases presented to him and he did so. This ground is an entirely artificial construct.

Under the heading "The need for further gypsy sites here", the inspector said this in paragraph 48:

It was submitted that these conclusions of the inspector were erroneous because risking undue competition for local work and potential conflicts between gypsy communities was not one of the considerations which was spelled out in policy HO11, because the inspector had accepted that the claimant and the other occupants of the four plots had mainly local connections and the evidence was that most of the families travelled within a 70 mile radius within Bedfordshire or perhaps Cambridgeshire looking for work.

It was further submitted that the inspector had erred in simply taking on board the evidence of the Gypsy Liaison Officer at the first inquiry when, at that inquiry, a much larger number of caravans was being considered. The inspector had overlooked the fact that the appeal proposal now was for a significantly smaller number of caravans.

Dealing with that point first of all, the inspector set out the nature of the proposal in paragraph 8 of the decision letter:

Turning therefore to the other criticisms, in principle the relationship of one gypsy site to other gypsy sites and their relationship to, for example, sources of employment and other facilities, are perfectly proper planning considerations. The fact that competition for local work and potential conflicts between gypsy communities are not referred to in policy HO11 is irrelevant since the inspector was not suggesting that they were. He was, however, obliged to have regard to all material considerations whether or not they were mentioned in policy H011. He was entitled to take the view that this was a material factor.

In paragraph 46 the inspector had noted that the families now on the appeal site appeared to have "mainly local connections" and he had been told that most of the families "travel within about a 70 mile radius within Bedfordshire, or perhaps Cambridgeshire, looking for work".

It seems to me that those matters were plainly relevant in deciding, in simple terms, whether there was too great a concentration of sites in too close a proximity to each other, because inevitably there would be a degree of competition for locally available work.

Mr Willers submitted that since the families had local connections, they would, as he put it, always be in competition for local work so there would always be that possible conflict, but that overlooks the point that the inspector was not here dealing with whether there was a need for additional gypsy caravan sites to be identified in the Mid Bedfordshire district as a whole, he was considering the specific question: even if there was such a need, were there good reasons for seeking to meet that local need on this particular site? He concluded in paragraph 48 that, because of the concentration of sites around Sandy, to do so would be undesirable in planning terms. He was entitled so to conclude as a matter of planning judgment.

In paragraph 47 of the decision letter the inspector said this, again when dealing with "the need for further gypsy sites here":

It is submitted that there was no evidence to support the inspector's view that there was a trend or shift of caravans from authorised sites to unauthorised sites, and no evidence to suggest that the claimant or others seeking planning permission had moved on to the site from an authorised site. Again, the latter part of that submission puts words into the inspector's mouth and sets up an aunt sally for the purpose of knocking it down. The inspector did not suggest that the claimant or others seeking planning permission had moved on to the site from an unauthorised site. Before deciding the question whether there were good reasons for seeking to provide a gypsy caravan site at this particular location, the inspector was considering in paragraph 47 the extent of the need for gypsy caravan sites in the district. He was making the general point that there had been a shift as between authorised and unauthorised encampments. Mr Willers took me to the figures and, upon even a cursory examination, it is plain that the inspector's conclusions are fully justified. The weight that he gave to this shift from authorised to unauthorised encampments was a matter for him.

It is submitted that the inspector failed to explain adequately his conclusion that the grant of planning permission "would serve to undermine fundamental aims of Government policy". Reference was made to paragraphs 47 and 57 of the decision letter in this context. I have dealt with paragraph 57 above. The reference in paragraph 47 is to the final sentences of that paragraph. Having noted the existence of a trend from authorised sites to unauthorised sites, the inspector said that he was not prepared to support that trend and then said that in his view to do so would only "serve to undermine local and national policy to provide sites for gypsies". The proposition that to support a trend of provision from authorised sites to unauthorised sites would undermine local and national policy to provide sites for gypsies is, in my judgment, so self-evidently correct that no further reasoning was required.

Having dealt with residents' concerns about crime, the inspector said this in paragraph 31 of the decision letter:

When considering the claimant's rights under the Human Rights Act, the inspector said this in the last two sentences of paragraph 60 of his decision letter:

It is submitted that the inspector failed to adequately explain why he considered that a personal condition would be impracticable. Mr Willers accepted that if, by impracticability, the inspector was referring to the number of occupants involved and their nomadic lifestyle, then he was entitled to reach that conclusion. On the other hand, if the inspector was saying that it was impractical to draft an appropriate condition, then he was in error. Since it was unclear which of those impracticalities the inspector had in mind, the inspector's reasoning was inadequate.

The decision letter has to be read in a common sense way. As soon as that is done it is plain that the inspector was not concerned with the finer points of draftsmanship; he was concerned with practicality on the ground. The proposals were for the retention of a gypsy caravan site which was divided into four plots occupied by four extended family groups. Those groups comprised parents, their grown-up children and grandchildren. As the inspector observed, some 30 people might be accommodated on the site in the 12 caravans. In that context the inspector was entitled to reach the view that, as a means of controlling the occupants of the site, a personal permission would not be practical given the numbers involved and the fact that they pursued a gypsy lifestyle, that is to say that they would be nomadic, people would constantly be coming and going from the site.

It will be noted, in any event, that a personal condition could, at the most, have overcome one of the concerns about residential amenity (the residents' apprehension of crime) that had been raised. The inspector's other concerns - the impact of the site on the countryside, other aspects of residential amenity, flood risks, impact in terms of policy and questions of need - would remain unaffected. Moreover, whoever occupied the southern site, the fact of that occupation as a gypsy caravan site would, in the inspector's view, lead residents to have reasonable apprehensions about the possible re-use of the northern part of the site, hence his observation in paragraph 60: "A personal permission would, even for only a few of the occupants, not secure the site from the possibility of future larger scale encampments". For the reasons set out earlier in this judgment, I am satisfied that that was a matter that the inspector was entitled to take into account, and it was a concern that could not be addressed by a personal condition for the reasons given by the inspector.

In paragraph 21 of the decision letter the inspector said this:

In paragraph 6 of the decision letter the inspector, as part of his description of the site and surroundings, says this:

It is submitted that the inspector's conclusion that substantial planting around the site would be "alien to the essentially open nature of the flat arable landscape around Hatch" was one to which no reasonable inspector could have come. Mr Willers pointed to the swathe of woodland to the east of the site, the poplar plantation to the north, a large number of conifer trees on neighbouring land to the west of the site, to the trees standing on the southern boundary of the site, to the fact that the Council did not contend in its written grounds for refusal that landscaping would be alien, as opposed to making the point that it would take some years to have effect, and to the fact that previous decision takers had acknowledged or had concluded that "substantial screening" would be acceptable. He showed me a number of photographs taken of and around the site and an aerial photograph.

There is no suggestion that the inspector's description of the site and the surrounding area in the decision letter is in any way inaccurate. He saw the site. It is in those circumstances impossible to characterise his view that substantial planting around the site would be alien to the essential open nature of the flat arable landscape around Hatch as perverse. Whether the landscaping was or was not alien to the surrounding landscape was pre-eminently a matter of planning judgment for him. When he described the surrounding landscape as flat arable landscape and as essentially open in nature, he had not overlooked the fact that there were a number of trees; indeed, in the very next sentence in paragraph 21 he noted that the landscape was "punctuated by small woods and by the poplar plantation", but he felt that the only significant tree belt nearby was that to the east and it seemed to him, and this was very much a matter of planning judgment to be formed on a site inspection rather than by looking at photographs in a court room, that the essential feature of the landscape immediately around Hatch was that it was largely arable and open. The inspector is a very experienced chartered town planner. In these circumstances the perversity hurdle is set very high indeed and Mr Willers has come nowhere near surmounting it.

I suspect that the real complaint in this case is that previous inspectors and the Secretary of State have expressed the view that planning permission could be granted for a smaller site. Those decision takers did not have an application for planning permission for a smaller site before them. That application was formally considered for the first time by this inspector. He was obliged to form his own view of the planning merits. In doing so, he was entitled to differ from the views of his predecessors, provided he took account of their views and provided he explained why he was doing so. The inspector set out his reasoning with very considerable care in a lengthy decision letter. He referred to the views of his predecessors, and it is plain that he recognised that he was differing from their view. After paragraph 21, which I have set out above, the inspector said this in paragraph 22:

I can well understand the claimant's disappointment given the indications in the earlier decision letters, but the fact remains that this inspector was obliged to form his own view. Plainly he did so, equally plainly it differed that of his predecessors, but there is no error of law in his decision letter.

For these reasons, this application must be dismissed.

MR WILLERS: Thank you, my Lord. I presume there may be an application by my learned friend. I can say, my Lord, that in the bundle we have a copy of the claimant's public funding certificate. I see Mr Sharland shaking his head.

MR JUSTICE SULLIVAN: Any applications?

MR SHARLAND: No, my Lord.

MR WILLERS: My Lord, there is one very short application -- it is likely to be short at this hour.

MR JUSTICE SULLIVAN: It is certainly going to be pretty short if I can guess what it is.

MR WILLERS: It is an application for permission to appeal against your Lordship's judgment. I say that with some trepidation having heard you comprehensively dismantle the arguments I put before you, but, my Lord, the application is in relation to four grounds: the fear of crime, unlawfulness, competition and the trend and shift point. Perhaps the most plausible of those four grounds, if I can put it that way, the most likely to interest the Court of Appeal, would be the ones relating to fear of crime and unlawfulness. What I say is that in a case where there is no direct evidence that the individuals living on the site, any of their families, have been responsible for any of the activity, the unlawful activity, and in a case where we are dealing with a different sort of scenario than that encountered by the Court of Appeal in the West Midlands case and the Newport case, as I said before, the inspector has to be extremely careful before coming to the conclusion that the fear of crime is justified. In my submission, without direct evidence in relation to particular occupiers, it is clearly wrong and an error of law for an inspector to come to that conclusion, and that is something that -- I use the word "coloured" -- affected his decision in respect of the unlawfulness point as well, and it is my submission that, with the greatest of respects, there is a possibility, and a realistic possibility, that the Court of Appeal might -- I say "might" -- come to a different conclusion from your Lordship, particularly on those points.

MR JUSTICE SULLIVAN: Yes. Thank you very much. I hope you will not think me unduly discourteous if, having gone through all the reasons, I do not rehearse them again. I do think it fair to describe this challenge to this particular decision letter really as quite hopeless. It is not merely that there is no real prospect of success, I think it really is a hopeless challenge.