Boswell v Secretary of State for Local Government & Anor

This is an application for permission to appeal under section 289 of the Town and Country Planning Act 1990 from a decision of the Secretary of State's Inspector dismissing the appellant's appeal against enforcement notices. The decision of the Inspector was dated 13 May 2010 following an earlier hearing in March. He dismissed the appeal of the applicant in this matter, Mr Boswell, and another person, Mr Linfoot against the enforcement notices which had been issued on 26 August 2009 by the second respondent local planning authority, Chorley Borough Council.

This matter concerned development of land at Heath Paddock, Hut Lane, Heath Charnock, Chorley in Lancashire. It is common ground that this land forms part of the green belt. The enforcement notices were in respect of the siting of two mobile homes and 14 caravans for residential development. There was also application for temporary planning permission in that regard in addition to the appeal against the enforcement notices.

In addition to the Secretary of State and the planning authority, Chorley Borough Council, the local residents are represented because notices were served on them and they have chosen to be represented today. I have heard submissions from counsel for all parties.

I also have clear and detailed written skeleton arguments from each counsel. I have read and taken those into account. Time does not permit to go into the arguments in any great detail and, indeed, it is not necessary to do so for the purposes of an application for permission to appeal. Essentially my task is to determine whether any of the four grounds that are relied on on behalf of the appellants are arguable grounds. Without those arguable grounds then permission would have to be refused.

It also has to be clear that there is only a right of appeal on points of law, and I say this really for the benefit of those who sit behind counsel rather than counsel themselves who are only too fully aware of this fact, that when it comes to an appeal it is not a rehash of all the arguments that have been placed before the Inspector. The hearing before the Inspector was the occasion for considering all the factors that needed to be considered, taking evidence and reaching a decision. What essentially the appellants have to establish before me today is that there is an arguable case that the Inspector erred in law in reaching the decision that he did. If there is no arguable case in respect of that matter, then permission has to be refused and therefore it is only if there is an arguable case that I could grant permission.

It is clear from the decision letter which I have read that the Inspector correctly identified the main issues; that he adopted the correct approach to his decision. He actually sets out at paragraph 6 of his decision letter what he regarded as, and everybody who has made submissions to me today accepts as, the main issue. I read it:

That encapsulates entirely the correct test and approach to the matter before the Inspector. It is indeed common ground that this land, as I have already indicated, formed a part of the green belt. It is also common ground that the Inspector made a finding that in fact this was a harmful occupation. In effect that forms part of his decision. It is a decision of fact, and quite rightly that cannot be effectively challenged. That being so, therefore, the Inspector, as he himself clearly identified, had to consider whether very special reasons existed for him to allow the appeal; whether there are other special circumstances which would enable him to go against what was a clear policy within Circular 01/06 which made clear that ordinarily it would be inappropriate to allow development of a gypsy and traveller site in green belt. In other words, the Inspector recognised from the outset that the appellant had something of an uphill task before him. In the event, the Inspector concluded that there were no very special circumstances in existence or any other special circumstances as to why there should effectively be an exception to the advice given in Circular 01/06.

In terms of the factual background, the appellants had taken up occupation of an agricultural site just to the south of Chorley and immediately to the east of the M61 on a wedge of land; they undertook various operational developments to facilitate the change of use of that site to its use for the siting of caravans, particularly for gypsy and traveller residential purposes. Of course, they did that without applying for planning permission. So it was in those circumstances that the Council issued the two enforcement notices in respect of those matters. The appellants appealed under sections 174(2) paragraphs (a), (f) and (g) of the 1990 Act on the grounds that planning permission ought to be granted for developments to which the enforcement notices related, that steps required to be taken by the enforcement notices exceeded what was necessary to remedy any breach of planning control or any injury to a amenity caused by such breaches; that the period specified in the enforcement notice fell short of what should reasonably be allowed. In addition, as I have already indicated, the appellants made retrospective application for temporary planning permission.

As a matter of fact it is common ground and indeed clear that the appellants were gypsies and that the site was being used for their needs as gypsies.; that there were, in fact, eight gypsy families on the site park; that there was no suitable, affordable, acceptable, alternative, available accommodation. It is clear from the decision that Circular 01/06, headed "Planning for gypsy and traveller caravan sites", formed an essential part of the arguments before the Inspector and indeed the decision itself.

The Inspector, in the course of his decision, addressed other material considerations and asked himself the question whether there existed very special circumstances. In doing so, he considered in particular, in addition to the Circular 01/06, the draft policy L6 of the emerging North West Plan Partial Review and the evidential base in the Gypsy and Traveller Accommodation Needs Assessment ("GTAA") which indeed underpinned that draft policy.

He also considered the evidence which was called on behalf of the appellants as to what was or became a central issue to the decisions on the question of whether there was unmet need for gypsy traveller sites in the region and in the locality. One of the major criticisms of the decision, essentially, in whichever way the grounds are phrased, is that the Inspector was wrong, and wrong in law, to concentrate on local unmet needs rather than considering regional unmet needs as forming the real basis for his decision. That is met by the argument that that was not the process which he was bound to take. Indeed, it is clear, as is argued in particular by Ms Davies on behalf of the Secretary of State, and adopted by the remainder of counsel, that the overview which is actually set out in Circular 01/06 really sets out the way in which the process is to be carried out and to be considered. It there shows in diagrammatic form that, first of all, there is the GTAA which assesses the need and identifies pitch requirements for each local authority area. Therefore, it considers pitch numbers that would be required. Secondly, at regional level, there is the RPB/RSS. I should say they are for the moment the Regional Spatial Strategy (RSS) as the Regional Planning Body (RPB) has in fact ceased as of July of this year. I say that just in passing. In terms of this diagram it is indicating that the next stage is to check and modify pitch numbers provided by GTAAs from a regional perspective and, indeed, it says in terms the RSS specifies pitch numbers for each local planning authority. In fact, in this instance it had specified ten pitches for Chorley. Then finally Stage 3, the development planning document ("DPD") identified specific sites to match pitch numbers on a local basis. So it is argued that the Inspector adopted the correct approach in law in considering first of all the regional requirements and then homing in, as it were, on the local needs, and as a result his approach was faultless. Those are the central arguments in this particular case.

What Mr Stinchcombe submits is that the Circular represented a fundamental shift in policy. In particular, he identifies the key intentions of the new circular to create and support sustainable communities where gypsies have fair access to suitable accommodation, education, health and welfare; to meet the need to increase significantly the number of gypsy sites with planning permission in order to address underprovision; to underline the importance of assessing needs at regional and subregional level; to ensure the gypsy policies are fair and realistic and to ensure that identified need is met fairly and effectively; to avoid gypsies becoming homeless through eviction from unauthorised sites without an alternative move. So the fundamental shift in policy, he submits, is in fact from assessing needs at district or local level to regional or subregional level and it is, in particular, in this regard, he submits, that the Inspector fell into error.

I turn, first of all, to the specific grounds. The first ground concerns whether the Inspector erred by wrongly having regard to whether there was local need for gypsy sites rather than whether there was a regional or subregional need. Put in simple terms, the attack on his approach was that effectively the Inspector was saying “Well, it does not matter if there is identified regional need as long as there is no local need in Chorley, therefore there cannot be any development there.” Well, in my judgment it certainly was not as simple as that. The question, of course, was for the Inspector to decide whether there were factors in support of this development that outweighed the harm that he found there was to the green belt and, in doing so, the question arises as to whether his approach to looking at the needs locally was wrong.

In simple terms I accept Ms Davies's submission that the Inspector approached this aspect of his decision in entirely the correct manner. Without going into any further detail, it is clear to me that the Inspector in reaching his decision was in fact entirely right to look at whether there was a local need. But that was not in isolation because he made it entirely clear that he was doing this against a background of having considered that there was indeed a regional need. And, therefore, in those circumstances it cannot be argued reasonably that he was wrong in law simply to have regard to local needs. It is right to say that he dealt with the specific matters in paragraphs 18 through to 20, and looked at the question of whether there was local need in terms of Ground 2. I should just outline Ground 2, which was whether the Inspector erred by irrationally including there was no evidence of current unmet need for sites. He did look at those matters in some detail, as he sets out in those specific paragraphs. Indeed, in my judgment, he refers to all the relevant information and a detailed analysis. He makes reference to the study that was to take place or the study that had in fact taken place, the GTAA, which itself did not require sites or pitches at Chorley. He identifies the fact that the draft policy, L6, had in fact identified the possibility of ten sites at Chorley, but also acknowledged the fact that Chorley themselves had objected to that draft policy. I shall come back to that in a moment when dealing with Ground 4.

Finally, in paragraph 20 of his decision he gives his reasons for not attaching weight to the matters that he has considered in some detail. In particular, he makes a clear finding that there was not an unmet need.

Mr Stinchcombe has rightly drawn attention to an apparent inconsistency in paragraph 30 of the decision letter in which, whilst dealing with the question of temporary planning permission, he indicated in terms that there was no evidence of unmet need. In my view, particularly in the context of his detailed analysis of unmet need locally, when he dealt with the matters which are now the subject of Ground 2, it was perhaps not as well phrased as it might be. However, I accept Ms Davies's submission that it is trite law that decision letters have to be read as a whole and are not construed as perhaps legal documents might be construed. Reading the decision as a whole, it is quite clear that in no way was the Inspector, as it were, overriding his previous detailed analysis of what was or what could amount to unmet need or what could not. He probably did not phrase that as well as he might have done, but effectively what he was doing was referring back to his own findings, and those findings were that there was not an unmet need, not that there was no evidence of unmet need. He had made that already clear. So whilst this is a standalone criticism of his reasoning, in terms of the temporary planning permission it cannot of itself be translated, in my judgment, into a fatal criticism of his approach in respect of his findings of there being no unmet need.

In respect of Ground 2 it is clear, and indeed seems to me to be common ground as a matter of law, that it could only succeed on the grounds that the Inspector had approached the questions he was addressing in this respect irrationally. It does seem to me that the point to which I just alluded and the perhaps unfortunate phrasing in paragraph 30 is really the high watermark of an attack on the rationality of the Inspector's decision, but it does not get anywhere near enough to approach a proper analysis of what might be construed as irrational. I have been unable to detect anything in the Inspector's analysis of those matters with which Ground 2 is concerned that approach the high test of irrationality. Those were matters of fact for the Inspector to determine and there is no appeal on the question of fact. It seems to me, therefore, that Ground 2 is itself unarguable.

And, indeed, Ground 1 it seems to me, also is unarguable for the reasons which I have given, that the Inspector approached this matter properly and that he cannot be criticised as a matter of law for adopting the approach that he did in respect of the local need for gypsy sites. It seems to me clear in his reasoning that he had properly had regard to regional need and properly directed himself to the issues of whether there was local need. It is for those reasons, it seems to me, that I am satisfied that Ground 1 is unarguable.

I turn now to Ground 3, which is whether the Inspector erred in law by deciding that the occupation of the appeal site by the applicants and others should not be afforded weight in demonstrating a local need. In my judgment that was entirely a matter for the Inspector to determine as a matter of fact. It was a matter indeed for him to apply weight to the various competing factors. It is clear from his decision that he balanced the needs here for the local gypsy communities to have facilities: health facilities, education facilities. Indeed, it is clear from his careful analysis of those needs that he gave considerable weight to those factors which he said went in favour of the appellant's case.

However, in essence this was an analytical exercise. Specifically in terms of Ground 3, he reached the conclusion that, in terms of whether there was an unmet need, the fact that the appellants were on the site and were using the site could not of itself be sufficient evidence of unmet need. The reasoning for that was very straightforward and simple. One, it was self-serving; two, and perhaps more importantly, the Inspector was correct to rely on the factor that seemed to weigh heavily with him, that, if this were a factor which was to be taken into account as a significant factor, it would simply mean that anybody who wished to create an unmet need in any particular area could simply occupy land and then argue “Well, I am on the land therefore there is a need”. It seems to me that the Inspector rightly decided that that should not be afforded weight. It is not that he disregarded it, it seems to me, entirely, but he decided that it should not be afforded weight and that seems to me to be entirely correct, for the main reason that it would be self-serving and would potentially encourage the use of authorised sites.

Turning to Ground 4, this really relates to the question of whether temporary permission would be afforded to the appellants. I accept that there are really two issues to be considered which arise from paragraphs 45 and 46 of Circular 01/06, which is the advice on the use of temporary premises where there is an expectation of change. The two arising issues which seem to me to be uncontrovertible as a matter of interpretation of the Circular are whether there is an unmet need and no site provision in the area; secondly, whether there is a reasonable expectation that sites are likely to become available?

The Inspector, in his decision letter at paragraphs 29 and 30, dealt with this specifically. First of all, he found that there were no alternative sites and there was no unmet need, so the first issue falls in respect of this matter. But then there is the question of the second issue, and that was whether there was a reasonable prospect of sites being permitted at the end of a five-year period. This is where the draft policy, L6, came into play. As he correctly identified, it would mean that L6 would have to be adopted for that prospect to exist, but the Inspector, in my judgment correctly, considered that the problem in that respect was that Chorley themselves were objecting to that particular policy, and it could not be said that there was at this stage a reasonable prospect of those sites being developed at the end of the five-year period.

In addition, the local planning authority must allocate a development plan document. Looking at the two stages, he concluded that it could not be said that there was a reasonable prospect, because there was uncertainty at both those particular stages. It seems to me that that reasoning cannot be faulted and therefore also this ground is unarguable.

In my judgment, what comes through from the Inspector's decision is a clear and strong concern for the gypsy families and how they are to be accommodated; in particular, the need for proper sites to address their concerns and needs for health and education amongst other factors. His concern extended to anticipating that, because of this particular situation here in Chorley, unfortunately the appellants were almost bound to move on and move to potentially unauthorised sites. He plainly had found that to be an unsatisfactory state of affairs. That is a matter which he plainly had very much in consideration and concern in reaching what in my judgment was a carefully balanced decision.

Having attached considerable weight to the factors which I have just outlined in favour of the appellants against the question which he had to address in view of the fact that this was green belt and plainly harmful occupation, having given careful consideration as to whether there was an unmet need, he approached that, as I have already indicated, on a correct basis. He considered carefully whether there were very special circumstances, whether there were any other special circumstances and in my judgment his conclusions in each respect cannot be faulted.

It follows, therefore, that permission to appeal will be refused.