Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF JONES
(CLAIMANT)
-v-
FIRST SECRETARY OF STATE
(DEFENDANT)
THE QUEEN ON THE APPLICATION OF SHELDON
(CLAIMANT)
-v-
FIRST SECRETARY OF STATE
(DEFENDANT)
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MR P BROWN (instructed by Leigh Day and Company, Clerkenwell) appeared on behalf of the CLAIMANTS
MR J LITTON (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANTS
MR C YOUNG (instructed by North West Leicestershire District Council) appeared on behalf of the Second Defendant in the appliation of Jones
J U D G M E N T
MR JUSTICE SULLIVAN:
Introduction
In these two applications under section 288 of the Town and Country Planning Act 1990 (the Act) the claimants challenge two decisions by Inspectors appointed by the first defendant dismissing their appeals and refusing planning permission for the use of land at (a) Fosccombe Hill, Corse, Gloucestershire and (b) Ryecroft Rd, Hemington, Leicestershire, as permanent quarters for travelling showmen.
The inquiry into the Gloucestershire appeal was held on 11 and 12 January 2006 with site visits on 10 and 13 January. The decision letter is dated 10 February 2006. The inquiry into the Leicestershire appeal sat from 11 to 12 October and 8 to 9 December 2005. The site visit took place on 12 December 2005 and the decision letter is dated 30 January 2006.
Although the two appeals are distinct and were determined on their own merits by different Inspectors, there is a great deal of common ground, particularly in terms of the relevant government policy in relation to travelling showpeople and the arguments advanced by the claimants at the two inquiries. It was therefore agreed by all parties that the two applications to this court should be heard consecutively and determined in a single judgment.
The factual background
The claimants in both cases are all travelling showmen and all of them are members of the Showmens Guild of Great Britain. The background is conveniently set out in circular 22/91: "Travelling Showpeople":
Showpeople are self-employed business people who travel the country holding fairs, chiefly during the summer months. Although their work is of a peripatetic nature, showpeople nevertheless require secure, permanent bases for the storage of their equipment and more particularly for residential purposes. Such bases are most intensively occupied during the winter, when many showpeople will return there with their caravans, vehicles and fairground equipment. For this reason, these sites traditionally have been referred to as "winter quarters". But increasingly showpeople's quarters need to be occupied by some members of the family permanently; older family members will stay on for most of the year and there are plainly advantages in children living there all year to benefit from uninterrupted education.
Most showpeople are members of the Showmens Guild of Great Britain and are required by the Guild to follow a code of practice on the use of their sites. Membership of the Guild provides showpeople with exemption from the site licensing requirements of the Caravan Sites and Control of Development Act 1960 when they are travelling for the purpose of their business,or where they occupy quarters for some period between the beginning of October and the end of March in the following year. However, they only enjoy permitted development rights ... when travelling for the purpose of their business. They are therefore required to seek planning permission to establish all other sites. Furthermore, since showpeople are specifically excluded from the definition of gypsies under the Caravan Sites Act 1968, they do not benefit from the duty on local authorities under that legislation to provide gypsy accommodation.
The nature of showpeople's sites is unusual in planning terms. The sites illustrate the showpeople's characteristic self-sufficiency by combining residential, storage and maintenance uses. Typically a site comprises areas setaside for the showpeople's accommodation - usually caravans and mobile homes - and areas where vehicles and fairground equipment can be stored, repaired and tested. This means that the sites do not fit easily into existing land-use categories. Some of the difficulties showpeople have experienced with the planning system can be attributed to this.
In recent years many showpeople have had to leave traditional sites which have been displaced by other forms of development, sometimes following compulsory purchase. Some showpeople have had considerable difficulty in obtaining alternative sites with planning permission. This has caused overcrowding on some sites, and caused some showpeople to leave their home areas in attempts to find alternative sites - not always successfully. The problems showpeople have experienced in obtaining planning approval for their sites have led them sometimes to occupy land in breach of planning control, resulting in lengthy enforcement proceedings. This jeopardises the showpeople's livelihoods, and entails considerable cost to local planning authorities. The Government urges local planning authorities to pay close attention to this guidance with the aim of avoiding such conflict in the future.
Development plans
Local planning authorities should consider the needs of travelling showpeople when preparing their local plans and unitary development plans. They should identify existing sites which have planning permission, whether occupied or not, and should make a realistic assessment of the amount of accommodation required, including that made necessary by displacement, to provide the basis for relevant and appropriate plan policies. Where there has been a tradition of sites occupied by showpeople, and/or a local need for sites has been demonstrated, plans may make specific proposals for sites which would be suitable locations for showpeople's quarters.
Sites should be reasonably flat, have good vehicular access, and be reasonably convenient for schools and other community facilities. They should be identified having regard to environmental considerations, including the potential nuisance to neighbours from vehicular movement and the maintenance and testing of equipment. Wherever possible sites should be identified in locations with convenient and safe access to the road network; discussion with the local highway authority may prove helpful. Sites on the outskirts of built-up areas may satisfy these criteria but, where such locations are proposed, care should be taken to avoid visual encroachment into the open countryside. Sites with substantial natural screening may be particularly appropriate.
...
In all cases the essential point is for local planning authorities to be ready to discuss the showpeople's needs with the showpeople themselves at an early stage, both while local plans and unitary development plans are being prepared, as well as in the development control context. Pre-application discussions can be particularly useful and may help to avoid misunderstanding or even confrontation at a later stage. The aim should be to help the showpeople to help themselves; this should allow the showpeople to secure the kind of sites they require and help to avoid the use of sites in breach of planning control."
Unfortunately, many local planning authorities failed to heed the advice in Circular 22/91. On 24 May 2000 the House of Commons Environment, Transport and Regional Affairs Committee published its 9th Report "Travelling Fairs ". The report considered the need for winter quarters and the impact of Circular 22/91. In paragraph 36 the Committee concluded:
"It is clear to us that many local authorities are not properly considering the needs of travelling showpeople, either during the preparation of their development plans, or when considering individual applications for sites for travelling showpeople's depots. We welcome the undertaking given to us by the Local Government Association to draw the attention of its members to the existence of Circular 22/91, so that it no longer 'languishes in the bottom drawer' of planning officers' desks. Local authorities must take their responsibilities towards travelling showpeople, as outlined in Circular 22/91, as seriously as they take their responsibilities to any other sector of society."
It would seem that despite the Committee's report, Circular 22/91 continued to languish in the bottom drawer of many planning officers' desks. Paragraph 8 of the consultation on revised planning guidance in relation to travelling showpeople, published this month by the Department for Communities and Local Government, states:
"A new Circular is necessary because evidence shows that the advice set out in Circular 22/91 has failed to deliver adequate sites for travelling showpeople."
The Gloucestershire decision
In paragraph 2 of the decision letter the Inspector said that the appeal raised four main issues:
The effect on the character and appearance of the area.
The effect on highway safety ...
Whether the development would comply or conflict with sustainability objectives having particular regard to access to facilities and services by means other than the car, the nature of the residential use and the patterns of working and travelling of Showpeople.
Whether there are material considerations which outweigh any harm and conflict with policy, having regard to:
the needs of the intended occupiers for accommodation, the need for site(s) in this area for Showpeople; and any need or benefit to the intended occupiers of a single site compared with sites for individual families;
the availability of any better located, or less harmful, alternative sites;
whether any local need is likely to be met in the context of existing planning policies and the interpretation of those policies; and whether there is likely to be any material change in the local policy context within which sites for Showpeople would be assessed."
Under the heading of "Planning Policy" the Inspector noted that the needs of travelling showpeople were not specifically referred to in the Development Plan and said:
"In the absence of any clear policy for Travelling Shoepeople in the development plan [dealing with their needs], longstanding national advice in Circular 22/91 is particularly relevant in this appeal."
The Inspector described the site, concluding:
"The distinctive qualities of the site and surroundings are the open, flat agricultural landscape; the contrast with the steep, wooded slope of Foscombe Hill - which forms a prominent backdrop to the site - and the absence of much modern development. The area has no special landscape designation, but I consider that the appeal site is an integral part of an attractive, open, and very rural, landscape." (5)(References in parenthesis are references to paragraph numbers in the respective decision letters).
The Inspector then considered the effect of the proposal on the character and appearance of the area looking firstly at the impact of the occupational development, for example, the creation of 16 hardsurfaced plots to provide accommodation for 16 families, and secondly at the impact of the use of the site, including its use for the storage and maintenance of fair ground equipment, especially in the winter months. In respect of the former, he said:
"The development would be of a much greater scale than other developments in the area, including typical farmyards, and would have a commmercial/industrial character. It would detract from the character and appearance of the landscape."(6)
In respect of the latter, he said:
"When fully occupied in the winter months, I consider that the site would present a strongly discordant feature in the landscape because of the variety and large number of elements on the site and the extensive area occupied. The caravans, vehicles and rides would not blend-in with the landscape. The use would be readily apparent from the B4211 and Wickridge Street and, to some extent, from the A417. The use would siginificantly detract from the character and appearance of this area of countryside and represent an incongruous, large scale intrusion in the rural scene." (9)
His overall conclusion on issue (a) was:
"The proposal is thus contrary to RPG10 EN1 (conserve and enhance local character), SP policy S6 (safeguarding of local character and distinctiveness) and LP policies ... There would be substantial visual encroachment into the open countryside and thus there would be conflict with the advice in paragraph 7 of Circular 22/91." (10)
After extensive discussion, the Inspector resolved issue (b) in the claimant's favour concluding:
"that the proposed use would not add materially to highway dangers ... the site is reasonably well located for access to the main road network ..." (19)
On issue (c) the Inspector said that it was:
"... largely agreed that the site is not well located for access to services and facilities by means other than the car." (20)
After some discussion of the various services and facilities, the Inspector said:
"Taking a long-term view, I consider that sustainability considerations are significant because if the appeal is allowed it is likely to become the home of more than the initial 16 mainly small families, given the desire of Showpeople to live together in extended families within their own community. The use conflicts with sustainability objectives of national policy and with development plan policies RPG10 TRAN 1 (reducing the need to travel) and SPT.1." (20)
He recognised that the:
"unique lifestyle and pattern of travelling of Showpeople lessens the practical disadvantages of this poor accessibility."(21)
but noted that:
"Circular 22/91 (which expressly recognises the distinctive lifestyle of Showpeople) states that sites should be reasonably convenient for schools and community facilities. Sustainability and accessibility considerations have become much more significant since the Circular was published. (21)
On this issue, I conclude that sustainability considerations weigh materially against allowing the appeal, but not as much as the harm to the landscale."(22)
Under the heading of "Other material considerations" the Inspector considered "need", "alternative sites" and "present and future policy context". On the issue of need he said:
"The Council does not dispute that there is a need for a site for Travelling Showpeople. The appellants have identified the 16 families who intend to occupy the site and provided details of their current circumstances. On the basis of the appellant's undisputed evidence, I accept that none of the intended occupiers has a permanent base of their own suitable for both residential occupation and for storing their rides and vehicles." (23)
In paragraph 24 the Inspector said that the long standing ocupation of an unauthorised site at Gotherington in the adjoining Tewkesbury Borough Council's area, about 10 miles from the appeal site:
"demonstrates that the need for pitches for Travelling Showpeople in and around Gloucester is considerable. The Council accepted that the Forest of Dean is part of the reasonable area of search for sites to meet the need in the wider Gloucester area. I agree." (24)
The Inspector said that while the 16 families wished to live together as a community of travelling showpeople, it was not essential for them to be on one site, but:
"the appellants stressed that their search for sites had not excluded smaller sites." (25)
In paragraph 26 he rejected an argument that the claimants did not need a site both for their homes, and for the storage of their equipment, saying:
"It seems to me that living alongside their equipment is a traditional and important part of Showpeople's way of life, explicitly recognised in Circular 22/91, and that sites are needed where both residential and storage uses can take place if this distinctive way of life is to be continued." (26)
He summarised the position on need in paragraph 27 saying:
"I give substantial weight to the needs of the intended occupiers for secure, permanent accommodation for both their residential and storage needs and accept that the appeal site would fully meet the needs of these 16 families, being within reasonable proximity of Gloucester with which most have long established connections. I do not consider that there is an overriding need for a single site for 16 pitches, but I accept that any potential site should be capable of accommodating groups of Travelling Showpeople, rather than single family units."
Under the heading "Alternative sites" the Inspector said:
"The Council accepts that there is no available alternative site(s) to accommodate the 16 intended occupiers of the appeal site. The Council suggests that there must be better located sites (closer to services and facilities), but does not identify any such sites which have been available in the past or which are available now. All the evidence available to me supports the appellants' view that no site(s) have been available in the past few years which would be suitable and which were, or are, available to the appellants.(28)
I accept that the appellants, individually or collectively, have been looking seriously for sites in the wider Gloucester area and have pursued possible sites with due diligence. I note that the appellants have been put off some sites by the adverse comments from local planning authorities as to their suitability or that advice on possible sites was not provided quick enough, resulting in sites being acquired by others. I also accept the general proposition that sites which might otherwise be ideal in planning terms - brownfield sites close to or adjoining the existing built-up areas with good road access - are also ideal (in planning and commercial terms) for other uses, especially higher value permanent built development. The appellants are thus competing with others for such sites and the planning system is likely to allow or allocate such sites for built development excluding, by default, their use as a base for Travelling Showpeople. "(29)
In paragraphs 30 to 32 the Inspector referred to a survey by the claimants' agent and to information obtained from Tewksbury Borough Council and Gloucester City Council. His conclusion in paragraph 33 was:
"I thus conclude that there are no suitable sites in the wider Gloucester area available to meet the need I have identified and there is little prospect of sites which meet all the expectations of Circular 22/91 being acquired by the appellants on the open market in competition with others."
Looking at the present and the future policy context the Inspector said in paragraphs 34 and 35:
"The Council accepted that suitable sites were likely to be found outside the existing built-up areas (but, hopefully, adjoining them). As a consequence, the Council also accepted, albeit reluctantly, that such sites would inevitably conflict with general development plan policies restraining development in the countryside. I have already indicated that the development plan makes no reference to Travelling Showpeople and there is no policy to accommodate the special nature of Showpeoples'a sites. In my view, it is inevitable that even if a site did not cause the particular landscape harm of the appeal site, it would nevertheless conflict with general countryside policies. For this reason, I do not weigh conflict with general countryside policies against the appeal proposal and have highlighted only conflict with landscape and sustainability policies, arising from the site-specific harm identified. (34)
Because the local plan does not recognise the need for Travelling Showpeoples's sites it also seems inevitable that informal enquiries to the Council about the suitability of sites on the market would continue to be met by adverse comments and the appellants or other Travelling Showpeople would not be assisted to find the "least worst" site in the countryside. This unrealistic policy context reinforces my view that the appellants would be unlikely to find and acquire a site acceptable to the Council among those coming onto the market in the future."(35)
In paragraph 36 he considered the prospect of a more helpful policy framework emerging through the new development plan system. He concluded in paragraph 37:
"I therefore conclude that the existing policy context means that sites for Showpeople will almost inevitably result in some policy conflict, that existing policies provide no assistance in identifying sequentially preferable sites (or the "least worst") and that any prospect of a more helpful and relevant policy framework in the LDF is some years away.
His overall conclusions were as follows:
"There is a local need for a site or sites to accommodate the appellant group of 16 families so as to provide them with their own secure permanent base. I accept that for many families, their current living arrangements and the yearly uncertainty of where they will spend the winter must be very stressful. I accept that there are no sites available to meet this need and the prospects of the appellant group finding a site(s) acceptable to the Council and available to purchase by them, is remote. The existing development plan does not recognise the needs of Travelling Showpeople contrary to the advice of Circular 22/91 and provides no assistance to the appellant group in identifying suitable sites. It is some years before any change in the policy context is likely to materialise. These factors together weigh very substantially in favour of allowing the appeal.(38)
I have identified that the appeal proposal would be out of scale with its surroundings and significantly detract from the attractive rural landscape of which it is part. In addition, occupiers of the site would not have convenient access to shops, schools and services other than by car, contrary to sustainability objectives. These 2 adverse factors would be permanent consequences of the development. I can appreciate that the appellants must feel very frustrated by the planning system which has failed to accommodate their needs in this area, but in my view this injustice does not justify allowing a development in a fundamentally unacceptable location. I have given considerable weight to the advice in Circular 22/91. The appeal would conflict with 2 of the 3 broad criteria identifying suitable sites (because of encroachment into the countryside and poor accessibility to schools and facilities). On balance, I consider that the considerable factors in favour of allowing the appeal do not outweigh the harm (and related policy conflict) that I have identified."(39)
He therefore dismissed the appeal.
The Leicester decision
The Inspector identified two main issues in paragraph 7 of the decision letter:
the impact of the proposed development on the countryside having regard to the need for the proposed use to be accommodated in the area and the availability of alternative sites; and
whether the proposal would encourage undue use of the private car, contrary to the aims of Planning Policy Guidance Note 13; Transport (PPG13)."
The Inspector referred to the relevant policies in paragraphs 8 to 10. Unlike the position in the Gloucester appeal there was a policy in the relevant Local Plan which dealt with sites for travelling showpeople. The explanatory text to the policy referred to Circular 22/91 and to the unusual features of such sites, and set out a number of criteria in Policy H16:
"The use of land outside the Limits to Development, as identified on the Proposals Map, as a site for travelling show people will only be permitted where
It can be demonstrated to the satisfaction of the Local Plan Authority that the proposal is to meet a genuine need that cannot be met either on an existing or proposed site or other site within the Limits to Development;
It is not located in an Area of Particularly Attractive Countryside, or any other area afforded special protection in this Local Plan;
It is well related to an existing settlement;
It would not be detrimental to the character and appearance of either the countryside or the settlement concerned;
It would not be detrimental to the amenities of nearby residential properties;
It is well related to the existing and proposed road network;
It incorportates a satisfactory means of vehicular access;
It incorporates susbtantial peripheral landscaping; and
The occupation of the site is to be restricted to members of the Showman's Guild of Great Britain and their immediate relatives."
In paragraph 13 the Inspector rejected the claimant's criticisms of Policy H16 because on its face it required compliance with each one of the criteria, however great the need for accommodation might be, saying:
"...I share the view of the previous Inspector that the requirements of Policy H16 should not be viewed as unduly draconian as the decision maker would normally take into account the degree to which a criterion may be breached and balance the resulting harm against the benefits of any proposal. I am satisfied that the significance of need in overall policy terms can be weighed in this manner ... I am satisfied that the criteria set out in Policy H16 provide an appropriate means of assessing the proposal against the requirements of the development plan."
The "previous Inspector" referred to in paragraph 13 was the Inspector who in a decision letter, dated 14 January 2003 had dismissed the claimants' appeal against an earlier refusal of planning permission for a site for 22 travelling showpeople. Because they had nowhere else to go the claimants had occupied the site prior to the inquiry in 2002. Following the January 2003 decision letter the Second Respondent served an Enforcement Notice. There was an appeal against the Enforcement Notice, albeit only on grounds F and G, which resulted in an extension of time for compliance that had expired in late summer/autumn 2004. This planning history was noted by the Inspector in paragraph 10 of the decision letter.
Under the heading "Need and availability of sites", the Inspector said, in paragraphs 14 to 17:
"The Council does not dispute the national picture of an unsatisfied need for additional sites for travelling Showpeople or that such a need is growing as existing sites are lost to more lucrative forms of development or due to the national growth in the showmen community. In response to such a specific need, I am satisfied that the occupation of the appeal site could be restricted to members of the Showman's Guild of Great Britain and their immediate families and thus comply with criterion (i) of Policy H16. Criterion (a) of the policy requires that proposals are required to meet a genuine need that cannot be met either on an existing or proposed site or other site within the Limits to Development. (14)
In respect of the 2002 appeal, the Inspector was not convinced that a local need, as opposed to a demand, had been clearly demonstrated for as many as the 22 families proposed to be accommodated on the site. The current proposal for a reduced number of 15 showman families to be accommodated all of which have already been identified by the appellant as operating within the local trading area and having a need for accommodation. This is not disputed by the Council. (15)
The Council argues that, having already bought and partly occupied the appeal site, the appellants have not subsequently pursued the availability of alternative sites with genuine commitment and vigour. However, at the time of the 2002 appeal decision, the Inspector accepted that the appellants had done all that could easonably be asked of them to find an alternative site, a comment that was repeated by the Council in the enforcement appeal in 2003. Since then the appellants have placed advertisements in local newspapers and collectively and individually written to local planning authorities and estate agents operating within the region. I consider these endeavours to represent a reasonable and appropriate attempt to identify other suitable sites even though they have not resulted in an alternative site or sites being identified. The investigations have included the Council's suggestion of land at Whitegates Farm where in my opinion the cost of land remediation coupled with, at best, a short term lease, effectively rule out the site as a practical alternative. I also note that the site at Oakthorpe was approved as a replacement for another site and is therefore already fully subscribed.(16)
The Inspector in determining the 2002 appeal considered 'the requirement to demonstrate that no suitable alternative sites exist within the limits to Development is an extremely difficult criterion with which to comply'. I share this view which, even with its local knowledge, is emphasised by the Council's inability to identify any such sites. Whilst one would have great difficulty to show that the presence of alternative sites can be totally ruled out, particularly in the regional dimension, I conclude that, from the evidence put before me, such alternative sites have not been shown to exist. In this respect although the proposed development would not offend criterion (a) of Policy H16 this does not mean that any site outside the Limits of Development should be regarded as acceptable for the proposed use."(17)
In relation to criterion (c) of Policy H16 the Inspector said that the appeal site was 1.2 kilometres from the centre of Hemington and some 500 metres from the edge of the settlement. He agreed with the previous Inspector:
"that the site is not at all well related to Hemmington. The location of the site would therefore be in conflict with criterion (c) of policy H16 is more closely related to the open countryside where both development plan and national policies exert strict control over new development." (18)
The Inspector considered the effect on the countryside at some length in paragraphs 19 to 28. In paragraph 20 he agreed with the previous Inspector:
"that the area retains a strong open Trent Valley character but that the presence of features of a more urban character, including the raised A50 trunk rode, the adjacent railway line, electricity transmission lines, the Willow Farm industrial estate and the distant cooling towers of the Radcliffe on Soar power station reduce the quality of the generally flat landscape to what could be most accurately described as medium to low."
He acknowledged that the landscaping proposals put before him were "substantially more extensive than in the previous appeal scheme", and accepted that the proposals did now amount to substantial peripheral landscaping, as required by criterion (h) in Policy H16. His overall conclusions on this issue are to be found in paragraphs 27 and 28 of the decision letter:
"Circular 22/91 advises that care should be taken to avoid visual encroachment into the open countryside. I fully acknowledge the appellants' endeavours to design a revised and reduced scheme incorporating substantially greater landscaping than proposed in the previously dismissed appeal scheme. However, given the substantial extent of the site, its prominence from a number of public viewpoints, including those in elevated positions, together with the length of time it would take for a suitable landscaping scheme to become fully effective, the proposal would result in a form of development having a generally incongruous urban appearance in the landscape. The use of the site would be extensive enough to amount to a significant visual encroachment into the open countryside, an impact which is due in no small measure to the site lacking the advantage of natural screening referred to in Circular 22/91. Having regard to the foregoing I consider that the proposed development would cause significant harm to the character and appearance of the surrounding countryside. This would conflict with criterion (d) Policy H16. (27)
On this issue, like the previous Inspector, I consider that there is a demonstrable need for accommodation for travelling show people in the District and that there is no evidence of the existence of sites that could fulfil this need. The site however is not well related to Hemington and its physical characteristics and location mean that the development would have an adverse visual impact on the surrounding countryside. The latter would be readily apparent from a number of public viewpoints. Whilst the appellants have proposed substantial landscaping to mitigate the impact of the development, given the characteristics of the site and its location, this would take a significant and, in my opinion, an unacceptable length of time in which to form a satisfactory screen to the development. Overall, I conclude that the accommodation needs of the showmen are insufficient to overcome the conflict with the development plan, notably Local Plan Policy H16." (28)
Under the heading of "Use of the private car" the Inspector agreed with the previous Inspector that the site was not well related to Hemington which was, in any event, a small village with few facilities. He concluded in paragraph 33:
"…On this issue I have therefore come to the conclusion that the proposal in this location would place undue and unacceptable reliance on the use of the private motorcar contrary to the provisions of the development plan and national policy."
Unfortunately the paragraph numbering of the decision letter went somewhat awry because after paragraph 33 there is another paragraph 32, immediately followed by paragraph 34. Those paragraphs are as follows at the second paragraph 32:
"I fully acknowledge the amendments now proposed in response to the Inspector's comments made in connection with the previous appeal determined in 2003. I recognise that the more extensive and appropriate landscaping now proposed in conjunction with a reduction in the number of pitches and the area of the site covered by hardstanding would assist in integrating the development into the landscape. However, for the reasons given, the proposal would still have a significant visual impact in the countryside to the extent that it would conflict with that aspect of Local Plan Policy H16. The previous Inspector's conclusion that the proposal did not sit comfortably with the Structure Plan's strategic aim to conserve or enhance the environment and minimise built development in the countryside have therefore not been overcome. Moreover the site is not well related to an existing settlement and in terms of its greenfield status and location. Overall, it does not represent a sustainable form of development. Whilst there is evidence of a local need for additional sites or pitches for showpeople which the proposal would address, the availability of alternative sites in more sustainable locations cannot be ruled out. On balance this latter consideration is insufficient to outweigh the harm that would be caused to the countryside and to policies at both national and local level that seek to promote more sustainable forms of development."
Under the heading "Human Rights" the Inspector said in paragraph 34:
"I have had regard to submissions made relating to Article 8 of the European Convention on Human Rights. I recognise that dismissal of the appeal would interfere with the appellants' home and family lives. However, this must be weighed against the wider public interest in pursuing the legitimate aims stated in Article 8, particularly the economic well-being of the country that includes preservation of the environment. For the reasons given above, I have concluded that the proposal would be harmful to the character and appearance of the countryside. These objections are serious ones and cannot be overcome by granting temporary permission or one subject to specific conditions. I am satisfied that the legitimate aims referred to above can only be safeguarded by the refusal of permission. I have also taken into account that the site has been occupied by the appellants for a considerable period without the benefit of planning permission, and in breach of an enforcement notice, amended on appeal. In all the circumstances, I consider that refusal permission is necessary in a democratic society in furtherance of the legitimate aims stated. On balance, I consider that dismissal of the appeal would not have a disproportional effect on the appellants, and would not result in a violation of their rights under the Convention."
He therefore dismissed the appeal.
Submissions
On behalf of the claimants Mr Brown submitted that in both cases the Inspector's conclusion, that the factors in favour of allowing the appeal were insufficient to outweigh the harm that would be caused to the countryside and to sustainability objectives, was Wednesbury unreasonable.
Irrationality challenges are not infrequently linked with other complaints about the decision-making process, for example, that the decision-taker failed to have regard to a material consideration, or had regard to an irrelevant consideration, or that the reasoning in the decision letter is inadequate, etc. It is important to recognise that the challenge to each of these two decision letters is made solely on the basis that the balance struck in the Inspector's final conclusion was irrational. There is no other criticism of the decision letters. It is not suggested that the Inspectors failed to have regard to any of the factors which weighed in favour of allowing the appeals, nor is it suggested that the Inspectors placed any irrelevant material into the scales when considering those factors which weighed against the grant of planning permission. There is no criticism of the reasoning in either decision letter.
Indeed, it can be said that these decision letters are very comprehensive and contain very full summaries of the parties' cases and of the arguments, which have not been the subject of any criticism. In fact, there is no criticism whatsoever of the decision letters, save for the submission that in finally striking the balance both Inspectors acted irrationally.
Mr Brown fairly recognised that in mounting such a challenge, particularly in respect of a decision by a planning Inspector who will have had the advantage of having seen the site in question, any claimant faces an uphill task (see, for example, Newsmith Stainless Limited v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin, provision 74, paragraphs 6 to 8. In R v North and East Devon Housing Authority, ex-parte Coughlan [2001] QB 213, Lord Woolf MR, giving the judgment of the Court of Appeal, said in paragraph 65:
"[65] It is when one examines the implications for a case like the present of the proposition that, so long as the decision-making process has been lawful, the court's only ground of intervention is the intrinsic rationality of the decision, that the problem becomes apparent. Rationality, as it has developed in modern public law, has two faces: one is the barely known decision which simply defies comprehension; the other is a decision which can be seen to have proceeded by flawed logic (though this can often be equally well allocated to the intrusion of an irrelevant factor)."
In these cases it is not suggested that there is any "flawed logic" in the Inspectors' process of reasoning. Can it be said that the balance finally struck by the Inspectors "defies comprehension"?
In my judgment the answer to that question, however much one may sympathise with the claimants, must be "no". I recognise, as did both Inspectors, that there were powerful arguments for allowing these two appeals, just as there were powerful arguments to the contrary. For the purposes of this judgment it has been necessary to cite extensively from the two decision letters. Standing back from the detail it is clear that both of the appeals were finely balanced. Without the assistance of the summary of the decision at the beginning of the decision letter, the reader would not know how the balance would be struck until the concluding paragraph. I readily accept that different Inspectors might have struck the balance in favour of allowing one or both of the appeals, but it does not follow that the manner in which these two Inspectors struck the balance was irrational in the sense of being outwith the very broad area of planning judgment that was open to them.
Mr Brown emphasised that both Inspectors had accepted that there were no suitable alternative sites within the nearby urban areas, referred to as the: "Limits to Development" in Policy H16 in the Leicester case. Thus in both cases any alternative site would have to be within the countryside. The countryside in both cases was not subject to any specially protected designation, such as Green Belt or Area of Outstanding Natural Beauty. It was "ordinary countryside" and as such to be preferred to alternative locations within countryside areas subject to special protection.
The fact that any proposed site would inevitably conflict, to some extent, with countryside policy was expressly accepted by the Inspector in the Gloucester appeal. For that reason he did not weigh conflict with general countryside policies against the appeal. He simply highlighted site-specific harm to landscape and sustainability policies (see paragraph 34).
The Inspector in the Leicester appeal accepted that, subject to compliance with the other criteria in Policy H16, the policy provided travelling showpeople with a potential exemption to the restrictive policies which were designed to protect the countryside for its own sake. (11). He therefore considered the site specific impact of the proposal of the landscape, which he accepted was most accurately described as of "low to medium quality".
Although Mr Brown referred to other decisions where the need for a site for travelling showmen (or in other cases for gypsies) had been sufficient to amount (with other factors) to special circumstances, so as to justify granting planning permission in the Green Belt, he fairly accepted that each case turned upon its own particular merits. Thus, for example, in Chichester District Council v the First Secretary of State [2005] 1 WLR 279, where the defendant had concluded that the need for a gypsy site, and the lack of any available alternative sites, justified the grant of planning permission in the Green Belt, the Inspector had concluded that:
"the proposed development would cause some, but little, harm to the undeveloped and rural appearance of the countryside and that such harm could, in any event, be largely mitigated by planting."
(see per Auld LJ at paragraph 20).
No doubt there will be cases where the site-specific harm is very limited and it may therefore be the case that the harm by reason of inappropriateness in the Green Belt and other harm is capable of being outweighed by considerations of need. However, in the two appeals presently before the court the Inspector in the Gloucester case concluded that there would be, "substantial visual encroachment into the open countryside" and that there was a material, albeit less weighty objection, on sustainability grounds. In the Leicester case the inspector concluded that there would be, "a significant visual encroachment into the open countryside", and that there was also a sustainability objection.
Mr Brown laid great emphasis on the statement of government policy in PPG3 Housing, paragraph 1, which was the policy applicable at the time of the enquiries that:
"The Government intends that everyone should have the opportunity of a decent home."
Paragraph 13 of PPG3 makes it clear that this policy advice relates not simply to bricks and mortar homes, but also to the housing needs of the whole community, including travellers and others.
Mr Brown submitted that in the absence of any other identified alternative site the planning system had simply failed the claimants. Both Inspectors had accepted that the claimants had done all that could reasonably be expected of them by way of searching for alternative sites. The respective local planning authorities had been unable to identify any alternative sites and moreover, contrary to Circular 22/91, were not actively assisting the claimants to help themselves to find alternative sites for their homes. Thus the claimants were effectively presented with no solution to their need for a home for the foreseeable future.
As Mr Litton pointed out, while one cannot fail to have sympathy with the claimants there will often be conflict between the policies in PPG3 and other policies, for example, those protecting the countryside or the Green Belt. Those policy conflicts are resolved on a case-by-case basis on appeal by Inspectors using their planning judgment. Even in those cases where there is an acknowledged need and no alternative site on which to meet that need, the question whether the harm would be done by meeting that need on a particular site is outweighed by arguments in favour of meeting the need, is pre-eminently a matter for an Inspector's planning judgment. There will be hard cases where the Inspector is entitled to say: "I recognise the need. I recognise that there is no alternative site, but the harm that would be caused by meeting the need here is greater than the harm that would be caused by leaving the need unmet. I therefore refuse permission."
As both Inspectors pointed out, the fact that there is no site available within the urban area, or within the limits of development, does not mean that any underlying site outside those limits must be acceptable (see paragraph 17 of the Leicester decision).
Both Inspectors considered that the site-specific impacts of these two appeals were such that, notwithstanding the acknowledged need and the lack of evidence of any alternative site, planning permission should be refused. It cannot be said that those decisions were irrational. The proposition that there is "no alternative site" must be approached with some care. There was criticism of the Inspector's conclusion in the second paragraph 32 of the Leicester decision letter that:
"Whilst there is evidence of a local need for additional sites or pictures for showpeople which the proposal would address, the availability of alternative sites in more sustainable locations cannot be ruled out."
It was said that this conclusion was inconsistent with the earlier conclusions of the Inspector, for example, the conclusion in paragraph 16 where the Inspector concurred with the view of the previous Inspector that the appellants:
"had done all that could reasonably be asked of them to find an alternative site, a comment that was repeated by the Council in the enforcement appeal in 2003."
Having concluded that the claimant's endeavours represented: "a reasonable and appropriate attempt to identify other suitable sites", even though they had not managed to identify an alternative site or sites, the Inspector said in paragraph 17:
"Whilst one would have great difficulty to show that the presence of alternative sites can be totally ruled out, particularly in the regional dimension, I conclude that, from the evidence put before me, such alternative sites have not been shown to exist."
That is entirely consistent with the statement in the second paragraph 32 of the decision letter, that:
"the availability of alternative sites in more sustainable locations cannot be ruled out".
The fact that neither an appellant nor the local planning authority is able, even after diligent inquiry, to identify an alternative site, does not mean that a more sustainable or more suitable site "cannot be ruled out", particularly if the area of search is a large one and has a regional dimension (see paragraph 17). In summary, merely because there is no evidence of an alternative site, it does not necessarily mean that none is available. In the absence of any such evidence the prospects of finding an alternative are a matter for the Inspector's judgment. In the Leicester case the inspector merely observed that a more sustainable alternative could not be ruled out. Given the regional dimension of the search that cannot be said to be either unreasonable or inconsistent with his earlier conclusions as to the thoroughness of the claimants' search. Absent an identified site, it is a matter of judgment as to how much weight should be placed on the fact that in a wide area of search there might be another less intrusive or more sustainable site.
In the Gloucester appeal the Inspector accepted that there was no evidence of alternative sites:
"... there are no suitable sites in the wider Gloucester area available to meet the need I have identified and that there is little prospect of sites which meet all the expectations of Circular 22/91 being acqured by the appellants on the open market in competition with others." (33)
Looking to the future the Inspector chose his words carefully. He accepted:
"that there are no sites available to meet this need and the prospects of the appellant group finding a site(s) acceptable to the Council and available to purchase by them, is remote."
The fact that the prospect of finding a site acceptable to the Council was remote did not rule out the possibility of a site which would not be in such a "fundamentally unacceptable location", as the proposal before the Inspector. In effect, the Inspector in the Gloucestershire appeal was making it clear that not all of the expectations of Circular 22/91 would be able to be met, and in practice it would not be possible to meet all the aspirations of the local planning authority.
He expressly recognised the fact that the appellants must feel, "very frustrated by the planning system which has failed to accommodate their needs", but he concluded that this did not justify allowing development in what he described as a, "fundamentally unacceptable location."
It follows from that approach that a different balance might be struck if the claimants came forward with a location which was unacceptable to the Council but was not "fundamentally unacceptable". The fact that no such location had been identified in the evidence at the inquiry was simply a factor to be placed into the balancing exercise at the end of the day.
Finally I turn to Article 8. The Inspector dealt with that in the Leicestershire case because the land had been the claimants' home, albeit without planning permission, for some years. Mr Brown submitted that since Article 8 was engaged there was a need for heightened scrutiny by the court. It should be remembered that Article 8.
"does not confer on the citizen a right to a home but a right to respect for a home which is different."
(see per Pumfrey J. At Paragraph 117 of the Chichester case).
While in some cases the need for heightened scrutiny in a convention case might make a material difference, on the facts of the present case I accept Mr Litton's submissions that the Article 8 issue really added nothing of consequence to the Inspector's analysis of the issues in the decision letter. There is no criticism of the Inspector's reasoning in respect of Article 8 and no suggestion that in the remainder of the decision letter he failed to take into consideration all of the factors that were relevant in the Article 8 balancing exercise. He was, therefore, fully entitled simply to cross-refer in paragraph 34 to the earlier detailed consideration of those factors.
At the end of the day it cannot be suggested that merely because there is an established need for accommodation for travelling showmen, and no alternative site has been identified in the evidence, that planning permission must be granted for the site that happens to be in front of the Inspector, however great the damage might be to the appearance of the countryside or to sustainability policies. In every case, a balance will have to be struck between the benefits of meeting the need and the harm done to other policy objectives. That balance had to be struck by the Inspectors in these cases. However, anxiously the process is scrutinised by the court it simply cannot be said that their decisions are ununreasonnable, or, looking at the matter through the prism of Article 8 in the Leicester case, that the Inspector's ultimate conclusion resulted in a disproportionate interference with the claimant's rights under Article 8.
For these reasons the applications must be dismissed.
MR LITTON: Thank you, my Lord. On behalf of the first defendant I would ask that the costs in both cases should be paid by the claimant. I believe my learned friend, Mr Brown, wants to say something about the principle of payment. If my Lord, you are with me in terms of the principle and payment of those costs, I think there is no dispute as to the figures. Costs schedules were, I understand, sent to the court. If, for whatever reason, they have not made it in front of you can I give you the figures?
MR JUSTICE SULLIVAN: The costs schedules were but I am not sure I received yours.
MR LITTON: Obviously they are split across both cases. The first one, if I take you to the Jones' costs. You will see, my Lord, the bottom line figure on the second page is £6,272 and for the Sheldon case the bottom line figure is £5,424. I do not understand there to be a dispute with those figures if the principle of payment is accepted.
MR JUSTICE SULLIVAN: Let us see what Mr Brown has to say about the principle, shall we?
MR BROWN: I do not believe there is an application from the second defendant.
MR YOUNG: There is not.
MR BROWN: Can I make it clear that in terms of the basic principle I cannot say that there is any reason in principle why my learned friend should not have his costs. I do not object to summary assessment, if your Lordship is minded to go down that road. I do not say that there is anything inherently unreasonable in the sums my learned friend asks for. I can only ask, and I recognise this, quite candidly, for my Lord either not to award costs against my clients or to order a reduced sum, simply in the exercise of your Lordship's general discretion. That is, I recognise, an unusual application to make. I make it in this case because whatever your Lordship may have said about the legal merits of my challenge, I hope your Lordship will understand that my clients believe they have been very hard done by by the planning system. It is a system which is supposed to help everybody, which in this case has patently not helped them. They are still left with a desperate problem, from their point of view, with no answer.
In this respect this application has been the last throw of the dice for them. Whether the proposed new draft circular breathes some new light into their hopes, only time will tell. By the time this appliation was brought they were left with months (?) to go.
Strictly speaking it has a bearing on whether my learned friends should have any costs at all. Until yesterday I was here pro bono having acted for both sets of claimants in the planning enquiry. I have tried to distance myself. objectively I have considerable sympathy for the position they find themselves.
My Lord, I was given to understand yesterday morning that my clients had managed to find some money to pay me, the total sum, I think, being suggested was £3,500. I am very happy to waver that fee. If your Lordship wants to make a payment to the Secretary of State then I would ask your Lordship to order that the claimants pay the £3,500 I would otherwise receive for being here. I do not do that in any sort of emotive sense. It seems if they have that money and is available it should go to the Secretary of State. I am happy to carry on that basis. It is very much that I am throwing myself on the court's mercy. I recognise, in terms of principle that there is no principle reason why we should not pay. I am not sure I can put the matter higher than that.
MR JUSTICE SULLIVAN: Very nicely put, if I may say so. Mr Litton, deserving claimants?
MR LITTON: Deserving claimants and I implaw my learned friend for acting for them in the way he has. On the other side of the coin is the fact that these claimants, albeit they say it is the last throw of the dice, have put the public purse to an expense of defending these claims. There are many deserving claimants that come before the court. It is not very often that a deserving claimant wins the day in terms of the costs. I would say that as a matter of principle the claimants should pay the Secretary of State's costs incurred in defending the claim.
In so far as the quantity is concerned, again my learned friend does not dispute that the sums are appropriate. Of course your Lordship may take a different view. What I would submit is that it would be appropriate for the sums assessed to reflect the costs as set out in the costs schedule. I have not taken any instructions. If they only have £3,500 with which to discharge that costs bill, then it may be -- I have taken no instructions and I do not bind the Secretary of State in any way -- that the Secretary of State will take a view as to whether that is worth having rather than trying to chase a larger sum. In terms of the principle, in my submission there can be no good reason why we should not have our costs. Again, in terms of the costs, there is no dispute. I would ask that they should be assessed in the sums claimed.
MR JUSTICE SULLIVAN: I too have considerable sympathy with the claimants. Unfortunately I quite often have sympathy with claimants in this court because the court is very much constrained by what it can do legally. It is not for me to consider planning merits, and so forth. However, it does seem to me that it might be said that some costs may have been saved by running these two cases together. The issues are very much combined so the Secretary of State was able to have, for example, one skeleton argument dealing with both. I realise it may not have been realised that the cases were going to come together until fairly late in the day. I think the best I can do for the claimants is to try to reflect that and they may not think it is very much, but one has to have some sort of view about the proportionality of costs for what turned out to be a one day hearing with judgment the next day.
Bearing all that in mind what I am going to do is order that the claimant in each case should pay the Secretary of State's costs. There should be summary assessment in each case. The costs in each case are summarily assessed in the sum of £4,000 making a total of £8,000. It is £4,000 for each set of claimants, rather than the sums claimed, to reflect the fact we have managed to run the two cases together.
MR BROWN: I am grateful for that, as I am sure those behind me are. I understand that because of staffing problems today there was a general request that one of us would draw up the order.
MR JUSTICE SULLIVAN: I think the order is sufficiently clear. My clerk will be able to communicate it to the Administrative Court.
MR BROWN: Your Lordship does not need any further action?
MR JUSTICE SULLIVAN: No, it was only if there was going to be some complications. There are not effectively in these section 288 cases. It is either "yes" or "no". Thank you very much.