Allen v Secretary of State for Communities and Local Government & Anor

In this matter, the site in question is one which the Claimant wishes to continue in use as a site for gypsies and travellers. The claim is brought under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”). The Claimant Mr Allen seeks to challenge a decision letter of the First Defendant Secretary of State of the 1^st October 2014 whereby he dismissed the Claimant’s appeal, which was made under section 78 of the Act against the refusal of the Second Defendant Council to grant permission under section 73 of the Act for development of land without compliance with a condition attached to an earlier permission (for change of use of the appeal site to use as a caravan site with 4 pitches, the erection of two amenity blocks, and the provision of hardstanding and landscaping) which condition limited the permission to a period expiring on 23^rd June 2012.

That decision followed a public inquiry, during the course of which the SSCLG had recovered jurisdiction over the appeal.

I shall consider the matter as follows;

The Claimant, his wife and three children have lived at the site since 2008. Another couple have also lived at the site, and there was evidence at the inquiry that from time to time others had done so. The Allen family and one of the couple referred to have the status of gypsies.

The site lies just outside the small village of Bletsoe. Caravans were first brought on to the site in 2008. Planning permission was granted on appeal in 2009, and the site is part surfaced with hardcore, and a sewage treatment plant, drainage and lighting have been installed. As at February 2014, there were 8 touring caravans on the site and two mobile toilet/utility blocks.

Because the 2009 Inspector considered that there was a reasonable prospect that sequentially preferable sites would be identified through the Development Plan, he granted a temporary permission, with a condition whose effect was that it expired in June 2012.

Planning permission was applied for on 22^nd December 2011 and refused on 31^st May 2012. An appeal was made to the SSCLG, which was to be determined by one of his Inspectors. The inquiry opened on 29^th May 2013, but was adjourned to permit the Claimant to address evidence produced by the Council, and also to address recent developments in human rights law. It resumed on 24^th September 2013, but was again adjourned because of a bereavement. The process of hearing evidence actually began on 25^th November 2013. 5 days were spent that month in hearing evidence, but the amount of evidence to be relied on by the parties was such that another six further days were required. Eventually, the inquiry concluded on 21^st February 2014.

Meanwhile the SSCLG had decided to recover jurisdiction over the appeal. He did so by direction of 7^th August 2013 in exercise of his powers under section 79 and Schedule 6 paragraph 3 of TCPA 1990 on the grounds that

“there was a high level of objections at both the application and appeal stage and this, together with both the specific planning history and controversy around the appeal site leads the Secretary of State to conclude that, in the specific circumstances identified, it is appropriate that the appeal is recovered for his own determination. The appeal is therefore being recovered because of the particular circumstances.”

On 23^rd April 2014 the Inspector submitted his report to the SSCLG. He recommended that permission be granted for a limited period of two years, subject to conditions. I shall deal with his reasons for doing so in a later section.

On the 1^st October 2014 the SSCLG issued his Decision Letter, in which he disagreed with the Inspector’s recommendation and dismissed the Claimant’s appeal. I shall deal with his reasons for doing so in a later section.

At [IR 189] the Inspector set out the main issues

“ 189. In the light of all of the evidence and submissions before me, including those made in writing, the main issues in this case appear to me to be as follows:

(i)

whether the continued use of the appeal site would accord with the relevant development plan policies, and whether the latter are consistent with national policy;

(ii)

whether the continuation of the use would be acceptable having regard to the site's accessibility to local facilities;

(iii)

whether the continuation of the use would cause any significant harm in any other respect;

(iv)

whether the continued use of the appeal site is necessary to meet a general need for traveller sites in the locality, either because of problem with the Council's proposed site at Meadow Lane, or for any other reason

(v)

whether the use of the appeal site should be allowed to continue because of the personal circumstances and needs of the site's occupiers.”

The SSCLG [DL 14] agreed with him that those were the main issues.

As will become apparent, the SSCLG agreed with the Inspector’s conclusions on the first three issues. I shall therefore set out a summary of the Inspector’s conclusions on the first three issues, but then set out his conclusions on issues (iv) and (v) at greater length. After that I shall set out his overall conclusions and recommendations.

On the first issue, the Inspector concluded that the proposals involved a clear conflict with policies CP13 and CP 14 of the adopted Development Plan, which seek generally to protect the countryside and Rural Policy Area from most forms of development. [IR 190-197]. He considered that policies in the Development Plan relating to accessibility by public transport, cycling and walking were relevant and not out of date [IR 198- 202].

He considered that policy CP9 in the Development Plan, which sets out a list of criteria relating to gypsy and traveller sites, was relevant [IR 204-211], as were policies relating to the effects on the landscape, local distinctiveness and character, built heritage and village settings [IR 212].

On the second issue, he concluded that the site performed very poorly against Development Plan policy [IR 215]. He concluded, in agreement with the 2009 Inspector, that the site’s shortcomings, from the point of view of accessibility by sustainable modes of transport, continued to weigh heavily against any continuation of the use as a gypsy and traveller site [IR 213-8].

On the third issue, he concluded that the continuation of the use of the land for four traveller pitches would not in itself be likely to cause any material harm to neighbouring occupiers or to the local community (including the Conservation Area in the village), so that there would not be breach of criteria (iv) or (vi) in Policy CP9, or with criterion (ix) in Policy BE30, which was a conclusion consistent with that of the 2009 Inspector [IR 219-230]. He also concluded that there was no conflict with policies CP9 (ii) or BE30(iv) and (v) so far as highway safety was concerned [IR 231-3].

I turn now to the fourth issue. As will become apparent, the approach of the local planning authority to a site known as Meadow Lane, and the future of that site, were of critical importance. Before turning to the Inspector’s conclusions, it is necessary to set out the contentions of the Local Planning Authority before the Inspector at the inquiry. That site had received planning permission for the provision of 14 travellers’ pitches, and the Council contended that it would be delivered by February 2015 [IR 84], and would meet all remaining needs up to 2021 [IR 84]. The Council continued [85];

“85.

The possible problems at the ML site with regard to noise, surface water drainage and flooding are recognised, and the development has been carefully designed to overcome these issues. The potential for odours arising from nearby land uses has also been fully taken into account. Technical studies have been carried out into these matters and put before the inquiry53. In the light of all this evidence, the Council considers that the ML gypsy and traveller site will offer a satisfactory living environment for future residents.”

[86- 91] ………………………………………………………………………

The Council’s submissions on the Meadow lane site

92.

With regard to odour issues, although the ML site is close to Bedford's main sewage works, the Council points to the fact that the operator, Anglian Water (AW), is currently carrying out a £20m programme of upgrading and improvements. These include the decommissioning of the most odorous processes, including the sludge drying tanks, sludge pads and anaerobic digesters, and their replacement with more modern equipment, which will also be-largely enclosed. This work is likely to result in a considerable improvement in the odour environment. The dispersion modelling carried out for AW predicts a 98 t percentile value at the ML site of less than 1.5 oue/m3 (European Odour Units). This would meet the Environment Agency's (EA's) guidance for even the most offensive odour types, which is the most stringent standard available.

93.

Furthermore, if the sewage works were judged to cause a nuisance to residential occupiers, the Council considers that there is still scope for further measures beyond the works currently in hand. If necessary, AW could be compelled to take such further action; additional works would be expensive but not prohibitively so. AW is evidently aware of the risks in this regard, and chose not to object to the proposals for the ML site. In the Council's view, this indicates that AW is confident that its current improvement programme will be sufficient.

94.

The Council accepts that the odour level on part of the access route along Meadow Lane itself would exceed 1.5 oue/m3. However, this would be a transitory experience, for which there are no applicable standards. And in any event, the level would still be below 3 oue/m3 for 98% of the time.

95.

The adjoining abattoir is regulated by the EA. The terms of its environmental permit require the operator to use the best available technology to prevent or control odours, in a number of specified ways. An odour management plan has been agreed with the EA. In the Council's view, this gives a reasonable amount of confidence that odours from this source will not be unacceptable. Overall, the Council considers that the risk of occupiers at the ML site being exposed to unacceptable odours, from any source, is low.

96.

Turning to noise, the Council accepts that the ML site suffers from noise from the A421. However, Condition 13 of the existing planning permission secures the provision of an acoustic barrier. Details have subsequently been approved, which provide for a solid fence, in a position close to the road carriageway. In this position the fence would be well away from the proposed caravan pitches, and in the Council's view, would not adversely affect living conditions at the site.

97.

The proposed acoustic fence is calculated to bring the external noise levels down to around 58-60 dB (LA_eql6hr) in the daytime, and 50-55 dB (LA_eq16hr) at night. This would be slightly above the recommendations of the World Health Organisation (WHO) and BS8233, which suggest an upper limit for gardens of 55 dB. However, in the Council's opinion, such levels are common in much modern residential development, and should therefore not be seen as unacceptable. Inside the caravans, the internal night-time levels with windows closed and trickle vents open are predicted to be 32-37 dB. In the day-rooms, the daytime level would be below 40 dB. These levels broadly accord with the WHO and BS standards. The Council therefore regards the site as capable of providing acceptable acoustic conditions for future occupiers.

98.

With regard to flood risk, the Council accepts that some small parts of the ML site are within flood zones 2 and 3, but the proposed caravan pitches would be clear of those areas. Where necessary, the remaining land, including parts of the access route and internal roadway, would be raised to a minimum level of 23.5m, to make the development safe for occupation. This would exceed the level recommended by the Bedfordshire and River Ivel Internal Drainage Board (the 1DB) by some 380mm, providing a more than adequate safety margin. Compensatory flood water storage would be provided within the site, with a capacity calculated to exceed the volume lost, so as to ensure that no flood water would be displaced off-site. The scheme has been designed in the light of detailed flood mapping carried out by the EA and the 1DB. These authorities are happy with the proposals.

99.

Foul drainage from the site would be piped under the A421 to the existing main sewer on the far side, and surface water drainage would be discharged to an existing highway ditch 67. Two small pumping stations would be needed, and holding tanks would also be installed at ground level to attenuate the flows to these systems. However, these would not significantly affect the site's capacity with regard to flood water, because they would not be within the areas that are liable to flooding. In engineering terms, the Council sees all of these works as relatively straightforward.

100.

Whilst the agreement of the Highways Agency (HA) is needed for the acoustic fencing and some of the drainage works, within the boundary of the A421, detailed discussions have taken place, and the Agency is content for work to start in advance of a formal agreement under the Highways Act68. Some details are still being finalised, but the Council is confident that a range of acceptable solutions are available69. In the Council's view, all of these ancillary works are either covered by the existing planning permission, or fall within permitted development, and most of the pre-development conditions on the permission have now been discharged 70. The Council anticipates that the ML works will be started before the end of February 2014, and completed by early 2015.”

The Claimant’s case was set out at [138-147]. It is not necessary to rehearse it, as its effect appears in the Inspector’s conclusions.

His conclusions read as follows (his footnotes omitted; any footnotes are mine)

“Issue (iv): general need for traveller sites in the area Current and future needs based on the 2012 GTAA (Footnote: ¹)

235.

At its base date in 2012, the GTAA showed an existing shortfall of around 14 pitches (46-48]. Since then, 6 additional pitches have been provided in the extension to the KH site [51]. But over the same period, the demand was calculated to grow at a rate of about 0.4 pitches per year [46], so by now (February 2014) this will have added about one more pitch to the need. Based on the GTAA as it stands therefore, there appears to be a current unmet need, for about 9 pitches.

236.

Beyond the year 2017, the rate of growth is expected to rise to about 0.8 pitches per annum (46]. Adding together the increase during the three-year period 2014-17, at 0.4 pitches a year, plus the two years 2017-19 at 0.8 a year, produces a requirement over the next five years for a further 2.8 pitches. Rounding that figure up to 3, and adding the existing shortfall of 9, results in an overall need for about 12 new pitches in total by the end of the five-year period.

237.

The Council's proposed development at Meadow Lane will provide 14 new pitches (52]. Numerically, this is more than sufficient to meet the District's requirement, for the 5-year period, providing it is completed within that time. In the meantime however, the immediate need for 9 pitches remains.

238.

……………………………………………………

239.

On this basis, I conclude that there is a current unmet need for 9 pitches.

The appellant's criticisms of the GTAA methodology

240.

The appellant, through the evidence of his planning witness, Mr Brown, has gone to considerable lengths to present a detailed critique of the methodology used in the GTAA (130-133]. However, the GTAA was subject to scrutiny at the public examination into the ADLP, only a few months before the opening of the present inquiry, and even now the Inspector's report on that examination is still less than a year old. The GTAA was found to be comprehensive, up-to-date and robust, and the Inspector concluded that, provided the Council's plans for KH and ML came to fruition, sufficient provision could be made for needs up to 2021 [50].

241.…………………………………………………………………………………

242.

In a plan-led system, it seems to me that the development plan process is the proper vehicle through which the testing such of such documents should take place in the first instance. This is so that repeated debate on similar matters can be avoided, and so that all parties can rely on the Inspector's resultant findings. In the present case, the appellant, by his own admission, could have pursued his criticisms of the GTAA at the examination, but chose not to do so. As a result, I give relatively little weight to those criticisms now.

243.

……………………………………………………………….

244.

………………………………………………………………………….

245.

………………………………………………………..The GTAA is the only actual evidence as to the level of need that is before me.

246.

I also note the appellant's reference to the DCLG Guidance on GTAAs. But that document is, as the title suggests, for guidance rather than a set of mandatory rules. For the reasons that I have outlined, I am satisfied that the Council has used its best endeavours to calculate the need for pitches, and that in doing so it has paid appropriate regard to the Guidance, taking account of the local circumstances.

247.

I therefore find no reason to doubt that the 2012 GTAA represents a reasonable estimate of the level of need for gypsy and traveller pitches in the Bedford area.

Reliance on Meadow Lane

248.

On my visit to the Meadow Lane site, it was apparent that this is a very challenging site on which to create an acceptable residential environment. The site is some way outside the Bedford urban area, and does not adjoin or relate in any way to any other settlement. Meadow Lane itself is a cul-de-sac off the A603 (the Cambridge Road), which currently serves only the sewage works, the abattoir, Bedford Town Football Club, and the existing travellers' emergency stopping place, which is currently closed. The land on which the Council proposes to provide the new permanent travellers site is mainly between the ESP, the abattoir, and the A421 dual carriageway.

249.

The proposed ML travellers' site is therefore isolated from any existing residential community, and in an area with a predominantly commercial and industrial character, and a poor visual environment. As such, I find myself in agreement with the appellant [144] that this is not an inviting location for residential occupation. Although the ADLP contains ambitious proposals for a new Bedford River Valley Park in this vicinity, this appears to be still in the early planning stages. On the evidence before me, I cannot tell how likely it is that this scheme will improve the surroundings to such an extent as to change the way the ML site is perceived.

250.

Within the ML site itself, a number of the problems that the Council faces in developing the site were apparent. The noise from the A421 was highly disturbing, even in the furthest part of the site from the road, where the new pitches would be sited. A distinct odour was noticeable in that part of the site, and all along the southern boundary, where the access road would come in. Large parts of the site were under standing water. And, as the appellant points out, those who attended the site visit were required to wash their footwear at the exit point, to prevent the spread of the New Zealand Pygmyweed [145]. Although mitigation measures are proposed for some of these problems, the evidence before me still raises significant doubts as to the quality of the residential environment that can be achieved.

251.

With regard to the traffic noise, the Council's witness Mr Patrick Allen acknowledged that, even with the proposed acoustic barrier fencing, the best external level that can be achieved within the new pitches, immediately around the caravans and dayrooms, is likely to be 58-60 dB [97]. This is significantly above both the 'desirable' and 'upper limit' levels in BS8233, and those described by the WHO as giving rise to 'moderate' and 'serious' annoyance in outdoor living areas [97, 140]. Neither the BS nor the WHO standards form part of national or development plan policy, but they are nonetheless widely recognised, and are thus deserving of some weight. I also note that, although the predicted level of 58-60 dB was apparently based on a fence height of 2.5m, and Mr Allen's evidence suggests that this might in fact need to be as high as 2.8m, yet Mr Pollard gave evidence that the relevant planning condition had now been discharged based on a lower height of 2.3m. If the latter is correct, it seems to me that there may be some uncertainty as to whether even the predicted 58-60 dB will actually be achieved. Be this as it may, there seems little doubt that the noise environment on the ML site will not be ideal.

252.

Turning next to the issue of odour, it appears that the improvements to the sewage works are still on-going, and I have no reason to doubt that these will bring the further reductions in odour that are predicted in Anglian Water's dispersion modelling (92]. It therefore seems likely that when the upgrading is completed, the odour levels from that source reaching the proposed new pitches will be within acceptable levels. The odour level experienced on the access route is likely to be on the margins of acceptability (94, 139], and I accept that this will detract from the quality of life to some degree, but on balance this alone does not make the ML site unacceptable. However, odours from the abattoir have not been measured [139]. Although some controls are in place through the EA [95], there is no clear evidence as to whether the Odour Management plan takes account of the proposed traveller site, nor whether the 'best available technology' that can be required would be sufficient in this case. The abattoir site is to the south-west of the area where the new pitches are to be laid out, and the occupants will therefore be directly in line with the prevailing wind direction. It is not disputed that the lairage, which is on the boundary, is especially likely to be an odour source (139]. In the absence of any evidence to the contrary, there appears an obvious risk that the residents of the ML site will sometimes be subjected to unpleasant smells from the abattoir. The evidence before this inquiry does not fully dispel that perception.

253.

On the question of surface water drainage and flooding, the proposed adjustments to site levels have been approved by the IDB (Footnote: ²) and EA (Footnote: ³), and I see no reason to doubt that these will be successful in protecting the new pitches and access roads from flooding, and in accommodating the necessary volume of compensatory storage [98, 99]. However, the Council's witness Mr Parker accepted that, across the remainder of the site, these proposed works will not prevent the waterlogging and standing water that occurs now, and that this could mean having to erect secure fencing to prevent any access into the affected areas... (141]. The evidence before me does not show the extent of those affected areas. However, at the time of my visit, the ponding was very widespread, and it seems likely that when part of the site is developed, as proposed, the water that previously would have collected in that area will be shed onto the remainder of the site. This may be exacerbated by the storage tanks and pumping stations, for which no allowance has been made. It therefore seems probable that, after development, the seasonal flooding will spread further, to cover much of the undeveloped residue of the site, between the new pitches and the A421 and the ESP (Footnote: ⁴). I appreciate the need to prevent access to that area for reasons of safety, but I share the appellant's view as to the effect of fencing off such a potentially large area of the site. In effect, this seems likely to mean that the traveller site will be hemmed in by fencing, increasing its isolation and resulting in a somewhat oppressive sense of enclosure.

254.

Given the likely lack of any access into the residual areas of the site, there is unlikely to be a need to take precautions in respect of the Pygmyweed (145]. Although it is somewhat surprising that no information about this issue was made available until a very late stage in the inquiry, the method statement belatedly provided by the Council does appear to show that measures can be taken to clear the weed from the area to be developed. But this does not relieve my concerns about the other matters discussed above.

255.

In the face of all these issues, relating to noise, odour, surface water drainage, plus the site's location and the nature of the surroundings, it seems to me that many of the appellant's arguments regarding the ML site are not without substance. However, planning permission for that development exists, and a legal obligation has been entered into for its delivery by February 2015. The question as to whether those decisions were right is not for me to judge. And although some practical problems remain to be resolved, it seems more than likely that the scheme will be brought to completion, probably within the period required by the obligation. In any event, it seems clear that the carrying out of these works will not be affected by the outcome of the present appeal.

256.

Nevertheless, the question remains as to whether the ML development, when completed, is likely to provide acceptable living conditions for its future occupiers. If not, it would be wrong in my view to rely on it as the only solution to Bedford's unmet needs. Looking at the various locational and environmental matters discussed above, it seems to me that whilst all of these may be problematic in their own right, individually none can categorically be said to be so severe as to rule out residential occupation altogether. For this reason, I am not convinced that it would be justifiable at this stage to completely discount the site from making any contribution to the district's future supply. But cumulatively, I agree that the ML site's multiple drawbacks might well be enough to make it unpalatable or unacceptable to many potential occupiers. If so, the site's contribution could be significantly reduced, or even negated. Whether this proves to be so, is likely to become more apparent within the first year or so after the site opens.

Conclusion on local need

257.

As set out above, there is an existing shortfall of 9 pitches against the district's current need, and a 5-year requirement for a further 3, making an overall need for 12 new pitches. The whole of that requirement is likely to be met within a year or so, by the development of 14 new pitches at ML. If that site proves satisfactory, there will not be a need for the appeal site as well, to meet the district's quantitative requirements. But the ML site has some serious environmental issues, and it is not unreasonable to question whether living conditions at the finished development will be acceptable. Consequently, whether the ML development will provide a satisfactory answer to the area's needs is a matter that will best be judged after it has opened, rather than now.

On the fifth issue, his conclusions are as follows (his footnotes again omitted):

“Issue (v): Personal circumstances

Mr & Mrs Allen

258.

The appeal site has been Thomas and Natalie Allen's home since 2008 [149]. Although it has never had permission for permanent use, there is no dispute that the site is the family's only home [150], and as such, their rights in respect of it are protected under Article 8 of the ECHR. Whilst the site is not in a preferred location in terms of planning policy, and most local facilities are some distance away, the family is still able to reach those that it wants to, and is registered with a doctor in Sharnbrook (149]. Most importantly, the site provides a settled base, which is likely to contribute to family stability, and therefore to the welfare of the three children. Allowing the site to become the family's permanent home would therefore help to meet some of the aims of the PPTS.

259.

Furthermore, the two older children are of school age, and the third is approaching that age soon. Although they have not attended school so far, there seems to be some prospect that they may do so if the family stays at the appeal site [149]. Attendance would give the children the chance of a decent education, more opportunities to socialise and integrate, and a better start in life generally. The children's best interests must be a primary consideration.

260.

If the family has to leave Bletsoe, there is no guarantee that they will find an alternative site in the area. The current shortfall of pitches identified in the GTAA is likely to make this more difficult. Although the ML site will provide additional capacity in the future, Mr Allen's concerns about that site appear to have some foundation, and I agree that it would not be right for a family with children to be left with that as their only option, at least until the development can be shown to provide an acceptable environment.

261.

I share many of the Council's reservations. There is no doubt that Mr and Mrs Allen have contributed to their own situation: first by giving up the pitch that Mr Allen originally had on his father's site (148]; and then by moving onto the appeal site without planning permission; and also by failing to make any alternative provision, despite knowing that their temporary permission was due to expire in 2012. Mr Allen himself acknowledges that he has not looked for any other sites, and has declined the opportunity to apply for a pitch on a Council site 179. However, my recommendation must be based on the situation that exists now.

262.

I also agree that there seems no reason why the family could not now be re-accommodated at Irthlingborough, as and when a pitch becomes available. Despite Mr Allen's references to past disagreements with his father (148], there is no suggestion that these were of a permanent nature. It is difficult to imagine that a pitch would not be offered if it were needed; or that such an offer would be refused. Alternatively, I see no reason to doubt that the Council would try to find a pitch at KH, and would give the Aliens some priority there because of their children (104]. I accept that this is not what Mr Allen would prefer, but on my visit to KH I saw nothing to suggest that it is not a suitable site on which to bring up a family. The facilities for keeping horses there are minimal, but there is nothing to stop Mr Allen from continuing to keep his horses at the Bletsoe site and his other grazing land as he does now. One way or another, it seems very unlikely that the family would have to resort to living on the roadside. However, remembering that children are involved, even a small risk in this respect is to be avoided if possible.

263.

I note that Mr Allen and his father have invested a considerable amount of money in works carried out at the appeal site [150], but the 2009 appeal decision made it clear that the granting of a temporary permission did not mean that permanent consent would follow. Not all works have been carried out in compliance with conditions.

264.

Overall, whilst the AlIens' circumstances are not necessarily compelling, if they were unable to continue living at the appeal site there would be some uncertainty as to their future, which would carry the risk of adverse impacts on the family unit, and in particular would not be in the best interests of the children. I therefore give these matters significant weight.

Michael Moss and Michelle Stevens

265.

Although there is some uncertainty as to how long Mr Moss and Ms Stevens have been in occupation of their rented pitch at the appeal site, and whether they have occupied it continuously, there is no dispute that they were living there at least during the latter stages of the inquiry and at its close (105/151]. From Mr Moss's evidence, I see no reason to doubt that they have no other home. To that extent, a decision that forced them to move would make them homeless, and would be an interference with their rights under the ECHR.

266.

However, their situation is somewhat less clear-cut than this, because from Mr Moss's evidence, it is clear that his and Ms Stevens' intention is to use the appeal site mainly as a winter base, and to travel elsewhere for up to eight months of the year (151-152]. Although they would wish to return to Bletsoe for the winters, and possibly also for short periods in between, and although they might leave one of their caravans at the site while they are away, under the terms of their arrangement with Mr Allen, Mr Moss acknowledges that those plans will always depend on whether any of the three rented pitches are vacant181. Whilst Mr Allen would apparently be happy to offer Mr Moss and Ms Stevens a pitch again if one is available, he would not expect one of his other tenants to give up a pitch for them. On Mr Moss's own evidence therefore, it appears that he and Ms Stevens have made up their minds voluntarily to give up their occupation of the site, without any guarantee of being able to return. Indeed, by the time any decision is made on the present appeal, they may have already done so.

267.

But be that as it may, Mr Moss and Ms Stevens evidently wish to pursue an itinerant lifestyle, and yet also to have a settled base to return to. These aims may be difficult to reconcile on some sites, but the appeal site has evidently served their needs in this respect. Its closure would restrict their opportunities in the Bedford area. Mr Moss would be equally happy with the Irthlingborough site, and would go back there if necessary [151]. But, as he found in 2013, there is no certainty of finding a pitch there when he and Ms Stevens want one. The couple's lifestyle makes it likely that they will need to resort to a variety of different sites at different times anyway, but as far as Bedford is concerned, until the shortfall of supply is made up, the prospects are likely to be difficult. And, as a couple without children, at least at present, Mr Moss and Ms Stevens are likely to have relatively low priority on Council sites.

268.

I therefore conclude that, at the present time, the loss of the appeal site would adversely affect Mr Moss and Ms Stevens' prospects of finding accommodation, and particularly of a type which would facilitate their travelling lifestyle, contrary to the aims of the PPTS. Whilst again their circumstances are not overriding, I give them some weight nonetheless.

Jim Draper and Wonny Jones

269.

There is no explanation for the fact that Mr Draper says that he and Ms Jones have been living at the appeal site for two years (153], and yet no mention of them was made in the original application, or in the original proofs of evidence, or the Witness statements submitted in July, September or November 2013 (101, 106, 153]. Mr Draper's own evidence was only submitted on the last full day of the inquiry. As a result, the Council had little or no opportunity to verify any matters arising from it. In my view, this repeated lack of disclosure, and the apparent contradictions with other information provided previously, casts doubt as to how much weight can be given to Mr Draper's evidence, particularly as to the length of his and Ms Jones' occupation of the site.

270.

Nonetheless, it appears that Mr Draper and Ms Jones are living at the site now, and I have no reason to doubt that they regard the appeal site as their home, and have no other. For the purposes of the ECHR, a refusal of permission would therefore represent an interference with their rights. However, that is to be balanced against the fact that when they first came to the site, even if that was two years ago, it was already close to the end of its temporary planning permission.

271.

If the Bletsoe site were no longer able to be used, Mr Draper and Ms Jones would have to compete for the limited supply of pitches in the area, and like Mr Moss and his partner, they would be unlikely to receive any particular priority. As long as the shortfall against the GTAA requirement persists, conditions would doubtless be difficult for them in the Bedford area. I therefore give some weight to the effects on them.

Steven and Sharon Smith

272.

……………………………………I therefore draw no conclusions from the limited evidence before me regarding the effects on these putative occupiers.

Other intermittent or occasional occupiers

273.

A large number of other persons were identified during the inquiry who were said to have occupied pitches at the appeal site, either during the inquiry itself or previously (155]. Some of those persons are said to be regular visitors to the appeal site, and a number are expected to return at some time. However, none was resident there at the close of the inquiry, and it was accepted by the appellant that no reliance should be placed on their individual needs or on the effects on any of them.

274.

Despite some inconsistencies about dates, I see no reason to doubt that the persons named do exist, and have spent some time at the appeal site. To that extent, it seems to me that the site has probably served a valuable purpose in meeting their needs. However, this is in effect just a manifestation of the scale of the general need which is already shown in the GTAA. To give weight to the needs of any of these absent persons as individuals would therefore be a form of double counting. I therefore give this consideration no further weight.

Other considerations relating to personal circumstances

275.

Apart from Mr and Mrs Allen and Mr Moss, there is no evidence that any of the present or former occupiers have gypsy status within the definition in the PPTS (108]. However, this does not affect the weight that I have given to their housing needs or other personal circumstances, as set out above.

276.

………………………………………………………………………………

I turn now to the Inspector’s conclusions and recommendations, insofar as they are germane to the issues before me (his footnotes omitted: those that appear are mine).

“Conclusions and recommendations

Conclusions regarding compliance with the development plan

280.

The appeal site's location in the countryside and the RPA (Footnote: ⁵) means that its continued use as a gypsy caravan site would conflict with the CS (Footnote: ⁶)'s countryside protection policies, CP 13 and CP14 [197]. For the same reasons, the proposal conflicts in principle with the sequential approach to planning for gypsy and traveller sites embodied in Policy CP9 (30].

281.

In addition, the site's poor accessibility to most kinds of day-to-day facilities,and lack of sustainable transport options, conflicts with the locational aims of CP9's criterion (v), and those of the general development policies CP2 (vii) and BE30 (v) [215].

282.

Although Policy C139 envisages circumstances in which the sequential approach may be outweighed by a need for sites and lack of alternatives, (and notwithstanding my findings with regard to those issues in the present case), nevertheless the policy still requires all sites to be judged against the stated criteria (30]. For the reason explained above, the appeal site does not meet Policy CP9's requirements in this respect.

283.

The appeal proposal is therefore contrary to the relevant policies of the development plan.

Conclusions with regard to other material considerations

284.

Based on the GTAA, there is currently an unmet general need in the district for

about 9 additional gypsy and traveller pitches [235]. Although the Meadow Lane development will more than make good this shortfall, it is not due to be ready until the end of February 2015 (53, 2541. There is therefore a need for up to 9 pitches in the meantime, at least on a temporary basis. This need, even if only temporary, is an important consideration.

285.

Although that figure is in one sense a theoretical one, being based on the GTAA calculations, it is also backed up to some extent by the evidence relating to the personal needs of the appeal site's occupiers. At least three of the households currently on the site (the Allen family, Mr Moss/Ms Stevens, and Mr Draper/Ms Jones) have demonstrated that they have accommodation needs of one sort or another, which are due some weight [263, 267, 270]. Of these, the greatest weight is that relating to the needs of the Allens, because their household includes children.

286.

Although there seems to be a chance that some vacancies will arise at Kempston Hardwick [261], there is no guarantee that all three of these households will be able to be accommodated there, especially given the level of unmet need in the area. And even if they were, in a situation of unmet general need, this would be likely to be at the expense of other local travellers, whose needs would then have to go unmet. For these reasons, it seems to me that consideration should be given to a temporary planning permission.

287.

As to the duration of any such temporary period, when the ML site becomes available, in quantitative terms it will meet the district's general needs, not just for the present, but up to at least 2019 (236-237]. When that happens, there should be no reason why the personal needs of the appeal site's occupiers cannot also be met, at least numerically. However, it is not yet known whether the ML site's environmental problems can be overcome, so as to provide satisfactory living conditions [255 - 2561. If not, that would undermine any reliance on the site. In my view, it would be premature to form a judgement on this before the site has been open for at least a year.

The planning balance

288.

The planning merits can therefore be summarised as follows. On the one hand, the appeal site is in an unsustainable location, where the occupants would be reliant on the car for all day-to-day needs; and where the continued use of the site would conflict with the development plan's policies for protecting the countryside and for promoting sustainable growth patterns. Although the harm arising from these policy conflicts would be of a somewhat intangible nature, the policies in question are important ones. Consequently, in my view, the conflict with them carries considerable weight. In the absence of any need argument, these matters would justify a refusal of planning permission.

289.

But as of now, there is an unmet need for sites, at least up to February 2015; and after that, there is uncertainty as to the adequacy of the future supply, due to the potential shortcomings of the ML site. Whilst the Council is to be commended for having taken decisive action to get a substantial number of traveller pitches delivered, it seems unfortunate that its choice of site should be one that raises so many questions as to its suitability. As a result, it seems to me that it would be unwise, and indeed unfair on the travelling community, to rely on the ML site in advance of being able to judge the finished result. And alongside these considerations, there are the personal needs of the site's occupiers, whose particular circumstances serve to illustrate the reality behind the figures. Together, these general and personal needs carry sufficient weight to justify granting a further temporary permission, despite the strong policy objections, while the supply situation remains unresolved.

290.

The balance of these considerations therefore points towards granting a further temporary permission, and in my view that permission should be for a period of two years. This would allow sufficient time for the ML development to be completed, and for the site to operate for between a year to 18 months, before any further decision needs to be taken regarding the present appeal site. If after that time, living conditions at ML are judged acceptable, the needs established in the GTAA will have been met. If not, the Council's failure to make proper provision is likely to be an important consideration in any future applications.

291.

I appreciate that granting successive temporary permissions on the same site has disadvantages for all of those involved, but in the circumstances of this particular case, it seems to me that no other outcome would, be fully justified at the present time.

Human rights and equality considerations

292.

A decision to grant a further temporary planning permission would not require any of the present occupiers to move. Although they would not then have a permanent permission, they would be in no worse position than now. Such a decision would therefore not represent an interference with their rights under Article 8 of the ECHR, to respect for their private and family life and for their home.

293.

But even if I were found to be wrong on that point, and the failure to grant a permanent permission were held to be an interference with the occupiers' Article 8 rights, such an action would be within the law. The interference would also be necessary, in a democratic society, in order to protect the rights and freedoms of the local community, as expressed through the elected Council, to pursue planning policies for the common good, including policies for the regulation of the use of land, and for the protection of the countryside.

294.

In the present case, in the light of the relevant policies and my assessment of the proposed development, I can see no other course of action that would cause less interference to the interests of the occupiers, whilst also protecting the rights of the community, apart from the one that I now recommend, of restricting any new planning permission to a temporary period. That course of action is the minimum necessary to safeguard the aims of the relevant planning policies, and would therefore be a proportionate response.

295.

The best interests of the children involved are a primary consideration. In the present case, it seems to me that the most important requirement for the Allen children is that the family has a settled home, and that the children are able to attend school. However, since they have not yet started at school, and Bletsoe is not well placed for access to schools, the appeal site holds no special advantage in that respect. Granting a further temporary planning permission for two years would allow the family to remain at their current home for now, and would ensure that they would not be forced to move before additional pitches become available to serve the area. The two year period would also allow sufficient time for a proper assessment of the quality of the new accommodation at ML, and for the family to make an informed choice between that site, or the other options which may be available to them. Granting temporary permission would therefore allow the children's best interests to be accommodated.

296.

Some of the appeal site's current occupiers are self-identified as Romany Gypsies (148, 151], which is a protected characteristic under the Equality Act 2010. However, as I have noted elsewhere in this report, the planning policies which weigh against a grant of permanent planning permission in this case would apply equally to any applicant, and Policy CP9 allows some gypsy and traveller developments to be considered more favourably than other types of housing in the countryside [206]. My recommendation also takes account of the personal circumstances of all the relevant occupiers, irrespective of their ethnic status. Granting a temporary permission in these circumstances would not lead to a discriminatory outcome.

297.

In all the circumstances, the grant of temporary permission for a further two years would safeguard the rights of all those involved, and protect the best interests of the children, and would pay proper regard to the relevant legal duty in respect of equality.

Conditions

(It is unnecessary to set out these paragraphs)

Overall conclusion and recommendation

304.

Although the continued use of the land would be contrary to development plan policies, there is for the time being an unmet need for more gypsy and traveller pitches in Bedford, and also some uncertainty as to whether the Council's planned provision will properly meet that need. These considerations, together with the personal circumstances of the site's current occupiers, weighs in favour of granting a further temporary planning permission.

305.

I recommend that the appeal be allowed, and permission be granted for two years, subject to the conditions set out in the attached Annex 3”

The Decision Letter

After some preliminary matters which do not call for rehearsal here, and after his adoption of the Inspector’s identification of the four main issues, the Secretary of State continued (I have not included passages not germane to the issues before the Court)

The claim as originally put in the pleadings was, to say the least, wide ranging. For the purposes of the case argued before me, Mr Masters reined in his submissions, and argued the following;

I did not invite Mr Whale to address me on the question of bias, nor on the recovery of jurisdiction. As I shall come to, I regard that part of the case for the Claimant as misconceived and unarguable. He made the following submissions on the other issues:

On 9^th March 2015 Bedford Borough Council (which had made no appearance in the action) sent a letter to the Administrative Court Office in which it sought to set out factual matters about what had happened at Meadow Lane since the date of the Decision Letter. In my view the sending of that letter (which was also apparently not copied to the other parties) was improper and should not have occurred. I have refused to have regard to it, and so informed Counsel for the Claimant and SSCLG at the hearing. It was as if Bedford Borough Council imagined that the Judge hearing the claim would in some sense be exercising his or her own planning judgement, and would be entitled to receive and act on letters which did not take the form of admissible evidence. Even if it had been submitted as a witness statement, it would have been inadmissible, given the fact that it related to facts said to have occurred since the Decision Letter had been issued.

The principles of law relating to the issues here are

In my view the central issue here is whether or not the SSCLG has grappled with the findings of fact and conclusions of the Inspector about the contribution of Meadow Lane to the supply of pitches. With Meadow Lane included, the Council had identified an adequate supply. Without it, the Council had not done so.

Mr Whale did point out that PPTS (Planning Policy for Travellers Sites) at [9] says that sites with planning permission should be regarded as deliverable. But that cannot mean that issues of suitability are irrelevant, not least when the interests of children are involved. In fact within the Decision Letter the SSCLG has accepted that the suitability of Meadow Lane for occupation by gypsies and travellers was a real issue.

The Inspector’s assessment of the Meadow Lane site falls into two parts;

In my judgement, the SSCLG, had he wished to do so, was entirely entitled to say that, having considered all that the Inspector had found and concluded about conditions on the site, nonetheless he thought that the site was suitable. But it is a striking fact about the Decision Letter that he does not identify any finding of fact, or any planning judgement made by the Inspector on the environmental issues at Meadow Lane, or its suitability as a place to live, with which he disagrees. He chooses instead to conclude that they will be overcome by the Council by February 2015.

I was taken at first by the argument that the SSCLG had been wrong at [26] to regard all the issues raised about Meadow Lane as having been addressed at the stage of the consideration of the planning application. But it is clear that issues of noise, odours and drainage had been considered by the Council (see IR [92-100]). The effect of the Inspector’s findings of fact must be that in his (the Inspector’s) planning judgement they had not been adequately addressed, which is a different point.

But that does not address the fact that the SSCLG relied on the Council accepting its “responsibilities to provide acceptable living conditions.” It is quite unclear to me what he had in mind. He has not said that he has reached a planning judgement that he considers that the site is suitable in its current state, or in that which would have obtained by February 2015 when the planning conditions and agreement would have been complied with. Had he done so, no complaint could be made. But if his point, as it appears to be, was that the adverse effects on suitability identified by the Inspector would be addressed, he had no evidence that the Council would , or could, do so. I note that:

Further, Paragraph [26] seems to suggest that it is the Council’s responsibility to deliver acceptable living conditions for future occupiers. He gives no provenance for that contention, which given the fact that some of the problems (e.g. the smells from the abattoir) are outside their control, is unsurprising. It is not explained what he considers the source of “its responsibilities” are. They cannot emanate from the planning permission and its conditions, given the Inspector’s findings and conclusions, none of which were disputed or not accepted by the SSCLG.

I accept that the Inspector was not excluding Meadow Lane as a source of supply. He expressly declined to do so at [256]. He adopted the approach of saying that its contribution “could be significantly reduced or even negated” and said that one should wait to make that judgement until after it had been open for a year or so. He went on that it was not unreasonable to question whether living conditions at the finished development would be acceptable, which he could not decide now [257]. Given the state of the evidence before him, and the series of failures by the Local Planning Authority to address adequately issues of real significance to its suitability as a place to live, that was an obvious course to take.

I was at first taken by the argument that at [DL 35] the SSCLG has come to the conclusion that in his planning judgement the Meadow Lane development could be assessed now, and that having done so, it would provide a satisfactory answer to the area’s unmet need for pitches. But that overlooks the fact that the preceding part of [35] shows that, in making that judgement, he was relying on his conclusions at [26].

I therefore conclude that the Secretary of State has failed to give adequate reasons for his decision. He has failed to grapple with a principal issue adequately. It was not argued before me (rightly) that had he done so, it would have made no difference to the decision.

In my judgement the question of the best interests of the children, and of the Article 8 rights of the claimant and other occupiers, take the case no further. The SSCLG had proper regard to them, and was entitled to weigh them against the wider public interest as he did at paragraphs [34: 37].

As to the wider allegations of bias, and complaint about the recovery of jurisdiction, I regard them as quite misconceived. I do so for the following reasons;

It follows, for the reasons given at paragraphs 29-37 above, that the interests of the Claimant have been substantially prejudiced by the failure of the SSCLG to comply with the relevant requirements.

I therefore quash the Decision Letter of the First Defendant Secretary of State for Communities and Local Government of the 1^st October 2014.