Holland & Anor, R (on the application of) v Secretary of State for Communities & Local Government & Anor

J U D G M E N T

Introduction

This is an application under section 288 of the Town and Country Planning Act 1990 for an order to quash the decisions of the Secretary of State's Inspector, dated 3 June 2008, dismissing the appeals made by each of the two claimants against the refusal by the second defendant, the Taunton Deane Borough Council, as local planning authority, to grant planning permission for, in either case, development comprising a change of use for gypsy occupation, for one family, of a single mobile home together with one touring caravan and one day room, at a site called Greenacres in the village of North Curry in Somerset.

The Inspector's decision

"22. Greenacres was a field which in October 2004 was divided and occupied as 16 plots. Following an Inquiry in June 2005, the First Secretary of State dismissed appeals for these 16 plots. The main objections concerned the residential amenity of occupiers of 6 Oxen Lane, the impact on the landscape and highway safety (at the junction of Oxen Lane and Greenway). The 4 appeal plots before me are 4 of those 16 plots, being the 4 plots closest to the entrance from Oxen Lane at the south eastern end of the site. Mr J Holland (husband of the present appellant Tracy Holland), Ms M O'Neill and Mr J Smith were among the appellants in 2005, although Ms O'Neill is now occupying a different plot. A statement was submitted to the Inquiry in 2005 from Leonard Small, but I do not know which plot he had an interest in at that time and I have not seen that earlier statement.

23. An appeal by Ms Charmaine Packman relating to plot 1 had been submitted along with the other 4 appeals before me, but was withdrawn in October 2007 when Ms Packman ceased her residential occupation of that plot following, what I understand to have been, an altercation with the occupier of plot 9. Plot 1 was reoccupied in January 2008 by someone else living in a static caravan and a planning application for the stationing of 2 mobile homes and a day room has been submitted to the Council. Plot 9 is also still in residential occupation. There are 6 derelict touring caravans on 6 of the other plots. All the plots are divided by wooden fencing much of which is dilapidated.

24. The Council has obtained a High Court injunction restraining the defendants, in summary, from causing or permitting any caravan or mobile home to be stationed on the site or from occupying any caravan or mobile home, but the named occupiers of plots 1, 7, 8 and 16 are not prevented from continuing to live on the site."

"(a) The effect on highway safety;

(b) The effect on the landscape;

(c) The effect on the living conditions of residents in Oxen Lane with particular reference to their outlook and noise and disturbance;

(d) Whether allowing one or more of the appeals would make it difficult to resist further permissions on adjoining plots and the consequential cumulative impact of any such development;

(e) Whether there are material considerations which outweigh any harm including: whether each appellant is a gypsy as defined for planning purposes, the need for gypsy sites in the area; how and when any such need will be accommodated; and the appellant's personal circumstances."

"38. The Council accepted that it would be difficult to sustain a highway objection against only 1 plot. I agree. I thus consider that in respect of each individual appeal taken in isolation it would not be reasonable to regard the unsafe junction of Oxen Lane and Greenway as weighing against that individual appeal, but that when the cumulative impact of all the appeals is taken into account there would be a material, albeit modest increase in traffic through a dangerous junction resulting in a material highway objection and conflict with SP policy 49 and LP policy S1(A). I consider that the visibility at the junction is so poor that there is a strong public benefit in avoiding any increased use.

39. The represented appellants place particular reliance on paragraph 66 of Circular 01/2006: Proposals should not be rejected if they would only give rise to modest additional daily movements and/or the impact on minor roads would not be significant . In their view, as it is agreed that traffic movements would be modest, then there is no justification for dismissal of the appeals on grounds of highway safety, irrespective of any adverse finding regarding the junction. My reading of this sentence is that even if additional daily movements are modest, consideration still needs to be given as to whether or not the impact on minor roads would be significant. Drawing from my assessment above, I consider that the adverse impact on highway safety from the cumulative impact of 3 or more plots would be significant."

"54. The occasional small caravan in a private garden or in the corner of a field is typical of the countryside. Circular 1/2006 makes clear that gypsy sites, and thus caravans, are acceptable in principle in the countryside. Subject to suitable hedgerow planting on land within each appellants control and conditions limiting the number of caravans to 2 on each plot, I conclude that none of the appeal plots on its own would result in material harm to the landscape. Where the appeal plots are alongside each other (ie 7 and 8, and 15 and 16) the caravans are reasonably grouped together and new planting along the open boundaries would be mutually beneficial. But the pairs of plots each side of the central track create a wide spread of caravans. Cumulatively, the 4 appeal plots result in an adverse impact, primarily because of the spread of caravans along a large area and there is the possibility of larger and more visible units, over time, if the appeals were to be allowed. I therefore conclude that each individual plot in isolation would not result in conflict with landscape policies of the development plan (SP policy 5 and LP policy EN12), but that there would be conflict from allowing more than 2 pairs of parallel plots."

"64. Firstly, precedent arises in relation to the remaining appeals before me if I were to allow any one of these 4 appeals. There is no material difference in planning terms between the 4 plots. Secondly, considerations of precedent and cumulative impact arise in relation to the other 12 plots at Greenacres.

65. In relation to highway matters, it would clearly be difficult for the Council to resist a series of separate applications over a period of time for residential occupation of other plots at Greenacres given my assessment and that of the Council that any one plot would not materially increase the use of the dangerous junction. A blinkered approach looking only at the individual merits of each application in isolation, would give rise to the possibility that on highway grounds 16 plots could be permitted. But the Secretary of State clearly found that a proposal for 16 plots was unsatisfactory because of the highway dangers created at the Oxen Lane/Greenway junction and I have found that it remains a dangerous junction at which a material increase in traffic should be avoided. Allowing any one of these appeals would make it very difficult for the Council to resist on highway grounds any further individual applications for family occupation on other plots at Greenacres.

66. In relation to landscape, I have identified landscape harm from the cumulative impact of the 4 appeal plots, but the additional landscape harm from any one additional plot would be marginal, making it hard for the Council to resist further applications on individual plots even though, over time, the landscape impact of a number of such developments would be seriously harmful.

67. In relation to residential amenity, it was accepted by the appellants that plots close to or abutting the garden of 6 Oxen Lane would be harmful to the residential amenity of that property. I have found that the 4 plots before me neither individually nor cumulatively would be harmful in this respect, but I have no reason to disagree with the assessment made by the previous Inspector and First Secretary of State that 16 plots were substantially harmful to residential amenity. At what point proximity to 6 Oxen Lane would become harmful would be for the decision maker in the future, but such a judgment is made particularly difficult in this situation by the absence of any physical differences between the plots, other than their proximity to that property.

68. I recognise that each appeal should be decided on its merits, but for the reasons given below I consider that allowing any of the appeals would be likely to result in further applications on the other plots. Firstly, there are 12 other plots of land at Greenacres not covered by these appeals and not in the control of any of the present appellants. All these plots were the subject of an application for residential occupation by their owners in 2005. Since the dismissal of the previous appeal, there have been 2 further applications on one of those plots and a long standing unauthorised occupation of another plot. All the plots are understood to be in the ownership of different gypsy families. Given the general shortage of gypsy sites in the region, many gypsy families would like to secure a residential pitch at Greenacres if there was any prospect of doing so. There is little to distinguish between the planning permits of different plots at Greenacres, other than the proximity of 6 Oxen Lane.

69. In the above circumstances, allowing any of the appeals on a permanent basis would be highly likely to result in applications for residential occupation of other plots which it would be difficult for the Council to resist (when considered only individually) on highway or landscape grounds. But the greater the number of plots that are occupied the greater would be the cumulative harm to highway safety and the landscape. In my view, this is a situation were the precedent effect of an appeal decision and the cumulative consequences weigh significantly against allowing any of the appeals, particularly as the Secretary of State concluded that occupation of 16 plots at Greenacres was unacceptable.

70. The appellants seek to discount the prospect of further successful applications on other plots because of the injunction which the Council has already obtained for the whole of Greenacres. The residential occupation of the other plots would be in breach of that injunction. I accept that the existence of the injunction may well deter owners of other plots from residential occupation of their plots in advance of obtaining planning permission (although one plot has been re-occupied since the injunction was obtained). But I do not accept that the failure to be in occupation at the time any such application were made would necessarily significantly alter the planning balance of considerations to be addressed. Any such applicant might still be able to demonstrate a pressing need for a pitch, even if they were not in occupation (such as living temporarily in unsuitable bricks and mortar accommodation or doubling up on another family's pitch). To conclude otherwise would be to accept that gypsies have little chance of success in the planning system unless they have already occupied the land. I do not accept that proposition. Furthermore, although the Courts may take a more robust view about enforcing an injunction against these who occupy land in defiance of an injunction compared with those already in occupation when the injunction is obtained, I cannot assume that an injunction would necessarily be immediately enforced by the Courts and the Council would still need to adopt a proportionate response in the light of the particular circumstances at the time. Accordingly, I do not regard the existence of the injunction or the extant enforcement notice as setting aside the real prospects of additional applications being triggered by any of these appeals being allowed, the difficulty of the Council in resisting any such applications on an individual basis and the cumulative harm to highway safety, landscape and, potentially, residential amenity that would arise.

71. The appellants highlight a number of recent appeal decisions where planning permissions were granted for a gypsy site despite previous appeal decisions rejecting such proposals. In some of those cases the scale of the development had been reduced and the appellants had control of the rest of the land the subject of the earlier dismissals which could then be the subject of conditions limiting the scale of development that would occur. That is not the case here. The individual appellants have no control over the other appeal plots or the other plots at Greenacres. The appeal plots represent only part of a much larger site served by the same access and with the same character."

"97. Taking each appeal plot individually and in isolation, I accept that there would be no landscape harm and no material difference to traffic using the dangerous junction of Oxen Lane with Greenway. But allowing any one plot would create a strong precedent for allowing the other appeals and make it very difficult for the Council to resist applications on the other 12 plots at Greenacres. For the reasons already given, I consider that this precedent effect and cumulative harm that would arise, weigh considerably against allowing any of the appeals.

98. In relation to the appeal by Mr and Mrs Small, the conflict with long established national and local policy for restraint of general residential development in the countryside and the precedent effect which would occur (especially as I have not treated them as gypsies for planning purposes) greatly outweighs their expressed desire to live on their plot in a caravan, and is sufficient reason to dismiss their appeal.

99. Weighing in favour of each of the 3 appeals by gypsy families are the following factors: the need for additional sites for gypsies in Taunton Deane and the wider area; the lack of any available alternative lawful sites; the lengthy timescale over which this need is likely to be met through allocations made in DPDs; and the significant disruption to home and family life that would arise from being forced to move from this site and especially the disruption to the education of the children currently attending school.

100. These matters pull strongly in opposite directions and are hard to compare. The circumstances of each family are broadly similar in planning terms, albeit that Ms O'Neill has the most children. The appellants did not seek to differentiate between the merits of each of their appeals or indicate a priority of need and the expressed preference was to stay together. It would therefore be arbitrary and unfair to choose any one of the 3 remaining appeals to determine first. In any case, whilst any one plot would be acceptable in highway and landscape terms, I consider that the precedent effect, firstly, in relation to the remaining appeals and, secondly, in relation to the remaining plots at Greenacres is so strong as to outweigh those factors in favour of allowing any one of the appeals. In practice, I can sensibly and fairly only consider these 3 appeals together. On balance, I consider that the factors that weigh in favour of these appeals individually and collectively, do not outweigh the harm that I have identified in relation to highway safety, landscape, precedent and cumulative impact and therefore permanent planning permissions are not justified.

101. Having come to that conclusion, I need to address whether any temporary permissions should be granted. Temporary permissions are suggested in Circular 1/2006 (paragraphs 45 and 46) where new sites are likely to become available at the end of any temporary period. For the reasons already given, I consider that 5 years would be necessary for alternative sites actually being available to these appellants through the development plan process. A 3 year temporary permission would mean that the Council would probably be faced with applications for further temporary permissions and the Circular does not contemplate a succession of such permissions.

102. The Circular notes that temporary permissions granted in such circumstances should not be regarded as setting a precedent for the determination of any future applications for full permission for the use of the site. But my concerns about precedent still apply at Greenacres. The owners of other plots would be likely to seek similar temporary permissions. Whilst a temporary permission means that the harm that would arise would not continue indefinitely, there would still be harm here. The landscape impact of 3 plots could not be mitigated for most of the 5-year period by new planting and it would be unreasonable to require for a temporary period the investment in the significant landscaping that would be necessary. The highway danger exists every time the junction is used. On balance, I consider that the needs of each of the appellants and other favourable factors are outweighed by the resulting precedent and the substantial cumulative harm that would arise from additional temporary permissions on other plots at Greenacres.

103. As regard the submissions made relating to Article 8 of the European Convention on Human Rights, I recognise that dismissal of the appeals would result in an interference with the home and private life of all the occupiers of the appeal plots. However, that interference must be balanced against the legitimate aims stated in Article 8, which encompass the protection of the environment and public safety. In my view, the objections to residential use are serious ones and cannot be overcome by granting temporary planning permission or by the imposition of other conditions. The public interest can be safeguarded only by dismissal of the appeals. In all the circumstances, I consider that dismissal of the appeals is necessary in a democratic society in furtherance of the legitimate aim stated. They do not place a disproportionate burden on the occupiers of the appeal plots. I therefore consider that dismissal of the appeals would not result in violation of their rights under Article 8 of the Convention.

104. I have therefore concluded that all the appeals should be dismissed."

The claimants' grounds of challenge to the Inspector's decision

Ground 1: the individual merits

"You are not invited by represented Appellants to choose between their pitches. You are not offered any basis for doing so."

Mr Sharland submitted that no point of procedural fairness arises here. The Inspector, he said, had clearly articulated his own conclusions on the concept of any of the appeals being allowed and any of the individual proposals being permitted to proceed. Mr Sharland laid stress on the conclusion expressed by the Inspector in paragraph 100 of his decision letter, where he noted that the appellants had not sought to differentiate between the merits of each of their appeals or to indicate a priority of need in the circumstances in which they had all expressed the preference to stay together. Thus, submitted Mr Sharland, it is only if a substantial point could be advanced on the issue of precedent and cumulative effect could the claimants mount any argument as to a failure on the part of the Inspector to have regard to the individual merits of each proposal.

Ground 2: precedent effect

"It is important, as Mr Gibbon who appeared for the Secretary of State pointed out, to read the Inspector's decision as a whole and [the] particular comments [of the Inspector] in their planning context.";

In the following passage relating to the decision of Mr David Widdicombe QC sitting as a Deputy High Court Judge in Poundstretcher Ltd v Secretary of State for the Environment [1988] 3 PLR 69 (74f), where he had stated:

"I accept Mr Hobson's proposition that where precedent is relied on, mere fear or generalised concern is not enough. There must be evidence in one form or another for the reliance on precedent. In some cases the facts may speak for themselves. For instance, in the common case of the rear extension of one of a row or terrace of dwellings, it may be obvious that other owners in the row are likely to want extensions if one is permitted. Another clear example is sporadic development in the countryside.";

in this further passage:

" ... The Inspector finds a limited effect but insufficient by itself to warrant a refusal; it would become part of a wider harmful cumulative effect. Second, he specifically identifies ... the existence of some relatively small properties in the area; these are clearly the ones which he has in mind as being at risk of similarly large extensions, to which the precedent effect would apply. Third, he reaches the planning judgment that those extensions would be difficult to resist; it is clear that that is because, taken in isolation, each would say that it was insufficiently harmful to warrant refusal, just like Mr Rumsey's case. Fourth, he reaches the planning judgment that that consequential accumulation would be harmful to the character and appearance of the area both in landscape terms ... And in reducing the variety of house sizes which is part of the character and appearance of the area ..."

and, finally, in this passage:

"I should add that I do not accept an earlier submission which Mr Pereira made, but then drew back from, to the effect that if no harm were found in any individual case, then no harmful effect could follow from subsequent decisions on all fours with that one. I consider that it is open to a planning decision-maker to reach a contrary conclusion: one development is harmless, but a second or more, each individually harmless, would lead to a harmful accumulation; thus the first might be refused, because decisions could not be taken in isolation, when in reality one decision led to another."

Ground 3: Circular 01/2006

"45. Advice on the use of temporary permissions is contained in paragraphs 108 - 113 of Circular 11/95 , The Use of Conditions in Planning Permission . Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.

46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay."

Ground 4: the Race Relations Act and Article 14

"The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning."

Mr Sharland submitted, and I accept, that it is clear from the decision letter and that the Inspector has in substance complied with the statutory duties. The Inspector referred to Circular 01/2006. This, submitted Mr Sharland, and I accept, is a positive indication that the Inspector complied with the race equality duties. As Mr Sharland said, the Inspector clearly recognized that the claimants were gypsies. This fact weighed in their favour, as did the difficulties they had encountered in finding settled pitches. These matters were brought into the overall balancing exercise involved in the determination of their appeals. The Inspector's recognition of the lack of authorized pitches and the difficulties the claimants would have in gaining access to them demonstrates, said Mr Sharland, that the Inspector acknowledged and understood the disadvantages facing the claimants by comparison with others of different racial groups.

"... The Council accept that the appellants have a need for accommodation and in the Council's view these families represent the main unmet need in the District. The Council also accept that there are no available pitches in the area for the appellants to move to if forced to leave the site. In September 2006, there were 4 vacant pitches at Tintinhull in South Somerset District. The appellants assert that by the time they were aware of these they had already been taken. Irrespective of whether the appellants would have had any real interest in moving to Tintinhull, it seems to me that given the very substantial need for more gypsy sites in the Region (1600 proposed pitches in the Partial Review) and a need in South Somerset (17 in the Partial Review) the prospects of any of the appellants gaining a pitch at Tintinhull would have been limited in the absence of any particular local connection with that site."

In paragraph 81, in his conclusion on the question of need for gypsy sites, the Inspector said this:

"I am satisfied that there is a significant material need for additional pitches within Taunton Deane and a substantial unmet need within the sub-region and region. These needs weigh in favour of allowing the appeals. I now go on to assess whether the Development Plan system is likely to deliver sites to meet that need as envisaged in Circular 1/2006."

The Inspector went on to undertake that assessment in paragraphs 82 to 85 of his letter, and in paragraphs 86 to 96 he turned to consider the question of personal and family circumstances as they related to the appellants in the appeals before him.

Conclusion