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

On 1^st June 2012 the claimant, who is a Romany Gypsy, applied for planning permission for the change of use of land which he owned at Brambly Hedge, Latchmore Drove, Landford, Salisbury, to a single pitch Gypsy site for one mobile home and one touring caravan. That application was refused by the second defendant on 13^th August 2012. The claimant appealed and on 24^th July 2013 his appeal was allowed. One of the matters which was in issue in both the application and the appeal was the proper understanding of policy CP13 of the second defendant’s Core Strategy and Development Management Policy DPD adopted in December 2010. The policy provides as follows:

“Policy CP13: Gypsies, Travellers, and Travelling Show people

Proposals for the provision of permanent and / or transit accommodation to meet an established need of Gypsies, travellers and travelling show people will be supported with the National Park where it can be demonstrated that there is a need for the site to be located within the National Park; and

a)

the impact of the site on the landscape character of the National Park is acceptable;

b)

the site is well located on the highway network and will not result in a level of traffic generation inappropriate for the roads in the National Park;

c)

there are adequate on-site facilities for parking and storage;

d)

in the case of any permanent site, be located where there are appropriate local facilities (e.g. shops, schools and public transport); and

e)

the site does not detrimentally affect the amenities of surrounding occupiers.”

Following the grant of planning permission on appeal there was an application under section 288 on the Town and Country Planning Act 1990 to quash the Inspector’s grant of consent. Whilst the first defendant conceded that claim the claimant sought to uphold the Inspector’s decision and the application was heard by Mr Timothy Straker QC (sitting as a Deputy High Court Judge). In relation to the proper construction of policy CP13 he concluded as follows in his judgment:

“38 The language of CP13 is to my mind perfectly clear. It indicates that the proposals to meet an established need will be supported where it can be demonstrated that there is a need for the site to be located within the National Park. The demonstration of the need for the site to be located within the National Park can no doubt be done in many and varied ways.

39 It may be capable of being done by virtue of certain personal characteristics but it does not follow that it cannot be done otherwise. The essence of the matter is that one has to follow through the terms of policy CP13.”

Having concluded that the Inspector had misconstrued policy CP13 the Judge quashed the appeal decision and the appeal was sent back to the first defendant to be re-determined.

A further inquiry was held to determine the appeal and the Inspector received evidence on behalf of the claimant in relation to his need for the use for which planning permission was sought. That evidence dealt in particular with his association with the New Forest area. In addition evidence was heard from Dr Murdoch, a Chartered Town Planner, dealing with planning policy and also the evidence in relation to need for Gypsy and traveller sites within the wider area. In support of the claimant’s contention that policy CP13 was satisfied Dr Murdoch drew attention to the grant of planning permission by the second defendant in respect of the grant of the application to allow the removal of conditions in relation to another Gypsy site so as to change the consent from a temporary permission to one which was permanent. That site, known as “Forest View”, had initially been granted temporary permission in 2004. The consent had been renewed for a further five years in 2009. In the Officer’s Report on the application the following was observed:

“11.4

A recent joint assessment of Gypsy and traveller accommodation needs in Hampshire was undertaken and identified a projected future need for two pitches in the National Park by 2017.

11.5

However, notwithstanding that, the site also needs to be assessed against the criteria of policy CP13 (which relates to Gypsies and travellers and which has been adopted since the previous permission). Specifically it has to be demonstrated that there is a need for the site to be located within the National Park and then subject to a number of criteria: that the landscape impact is acceptable; the site is well located on the local highway network; the residential amenities of surrounding occupiers is not detrimentally affected; and there are local facilities in the vicinity.

11.6

The precise wording of the policy CP13 has come under scrutiny following a High Court challenge to the (allowed) appeal at Brambly Hedge, Landford. In his decision, the Deputy Judge agreed that, notwithstanding that there may be an assessed need for sites in the wider area of South Wiltshire, it has to be demonstrated that the site must be located in the National Park.

11.7

The temporary site at “Forest View” in Landford has existed since 2004 and meets the specific needs of the present occupant of the site, who has demonstrated a particular affinity with the area – he has worked in the locality and his wife is buried near Romsey. The information accompanying the application is that he intends to remain there “for the remainder of his life”. This site is therefore considered to meet the need expressed in policy CP13 and its continued use for Mr Webb and his dependants would therefore be acceptable.”

The claimant both before the Inspector and also in submissions to the court drew attention within this decision firstly, to the approach taken to the correct application of policy CP13 and secondly, to the comparability of the evidence in that case to that available to the claimant to demonstrate a satisfaction of the requirements of the policy.

The Inspector dismissed the appeal and provided reasons in a decision letter dated 23^rd March 2015. One of the main issues which he had identified both as part of the inquiry process and also within his decision was whether or not there was a need for the appeal site having regard to policy CP13. He addressed within his decision both the proper understanding of CP13 and whether on the evidence the claimant met its requirements. The Inspector’s reasons on these issues were as follows:

“Interpretation of Policy CP13

8.

The appellant interprets the first part of Policy CP13 as being satisfied if there is shown to be a need for sites within the National Park. The NPA interprets it as having two elements both of which need to be satisfied. The first being to establish a generic need and the second to then consider whether a particular site specific proposal needs to be in the National Park

9.

I interpret the first part of the policy as having two elements as described by the NPA. National guidance in the PPTS [Planning Policy for Traveller Sites] advises that local planning authorities should prepare and maintain an up-to-date understanding of the likely permanent and transit accommodation needs of their areas over the lifespan of their development plan. A recent accommodation assessment for Hampshire (HTAA) sets out an estimate of projected future need for traveller pitches in the Hampshire districts and in the National Park. It identifies a need for two additional pitches in the National Park for the period up to 2017 but with no further requirement up to 2027. It is a modest notional figure but nonetheless satisfies the requirement that there should be an established need.

10.

To satisfy the second element of Policy CP13 proposals that come forward should show a need to be within the National Park. Each proposal has to be assessed individually. The policy is not prescriptive but such an assessment would be likely to include the activities of the proposed occupiers within the National Park, their employment and their family circumstances.

11.

Gypsy and traveller development, by its nature, is likely to be harmful to the landscape and scenic beauty of the National Park even though sometimes the individual harm may not be great. By limiting new Gypsy development to that with an established local need, Policy CP13 is limiting harm to the National Park and supporting the NPPF objectives, particularly paragraph 115. The PPTS advises that applications for traveller sites should be determined from any travellers and not just from those with local connections. I consider that the first part of Policy CP13 is properly interpreted as a two stage test, that such an interpretation is in line with national planning policy, and that the policy should be given full weight.

Need for a location in the National Park

12.

Mr Whitcher is a Romany Gypsy whose family have a long tradition of living in and around the New Forest. His grandfather was employed as head ploughman in Brockenhurst and his father lived there in an encampment until shortly after the Second World War when he married and moved to conventional housing in Totton on the outskirts of Southampton. Mr Whitcher was born in 1972. He lived with his parents in Totton until he was 17 years old and then with his first partner and their four children in various properties in the Southampton area until they split up. Although he always had a permanent address during this period he travelled regularly throughout the New Forest area, both on his own and with relatives, as well as travelling further afield to sales and horse fairs.

13.

In 2010 Mr Whitcher moved in with his partner Ms Foster who lived with her daughter Jasmine and other family members in a house in Calmore, again in the Southampton conurbation. He acquired the appeal site in 2011 as a place to keep animals on but then applied for planning permission for a Gypsy pitch in June 2012. This was refused in August 2012 but nonetheless he moved a mobile home onto the site in September 2012 and shortly afterwards Ms Foster and Jasmine came to live with him.

14.

During his adult life Mr Whitcher has taken on various jobs as and when they become available. They included scrap metal dealing, buying and selling horses and casual gardening and labouring work. He is not a New Forest commoner but, with his brothers, helps his father who has commoning rights associated with land he rents outside the National Park near Totton. At present there are four horses on this land and a further four with two foals being grazed in the forest. Commoning is an important tradition in maintaining the New Forest landscape but often the home ground is situated outside the National Park, as is the case with the land rented by his father. Mr Whitcher himself has two horses on land he rents adjacent to the appeal site as well as hens and goats.

15.

In summary Mr Whitcher was brought up outside the National Park and, apart from brief spells, has always had a bricks and mortar base outside the National Park until moving to the appeal site. Ms Foster, who is not a Gypsy, works in Downton and her daughter has part time work in the same village but also travels by bus to a college course in Totton. Both locations are outside the National Park.

16.

I have no doubt that Mr Whitcher satisfies the planning definition of a Gypsy and that his need for a site is real. His unauthorised occupation of the appeal site for some two years is evidence of this. However this need is a general need for a site and not a locational need. The Whitcher family has strong historical connections with the National Park and some members of the wider family live within its boundaries but this in itself does not amount to a locational need.

17.

In the recent granting of a personal permission at Forest View the officer report concludes that the proposal met the locational requirement of the policy CP13 stating that the temporary site… has existed since 2004 and meets the specific needs of the present occupant of the site, who has demonstrated a particular affinity with the area – he has worked in the locality and his wife is buried near Romsey. Whilst I accept that Mr Whitcher also shows some affinity with the National Park his circumstances are very different. The temporary permission for Forest View was first granted before the National Park came into being and under different development plan policies; the report does not indicate what the employment links with the area were; and the site has been occupied with the benefit of planning permission, even if it is temporary, for ten years. On this basis it is of little assistance to compare the two proposals.

18.

One of the implications of having a locational need requirement is that it limits the scope for new Gypsy sites. However I do not find this surprising or unreasonable. Development policies in National Parks are generally restrictive. National advice in Planning Practice Guidance (PPG) is that in assessing whether need can be met local planning authorities should take account of any constraints which indicate that development should be restricted and which may restrain the ability of an authority to meet its needs. There are currently no established permanent Gypsy sites in the National Park whereas there are significant clusters of sites in the neighbouring New Forest and Wiltshire Council areas. Historically within the wider region that is where sites have become established and where planning policies have guided new sites. That is undoubtedly where most new provision will be made.

19.

I find that, whereas a modest general need for traveller sites in the National Park has been identified, the proposal before me fails to satisfy Core Strategy Policy CP13 which requires it to be demonstrated that there is a need for the site to be located within the National Park. I give substantial weight to the policy harm arising from this conflict.”

The Inspector went on to appraise the impact on the character and appearance of the area and concluded that significant weight should be attached to the overall harm caused to character and appearance in landscape terms. He then analysed the evidence before him in relation to the general need for traveller sites and concluded that there was an unmet general need both in the National Park and the wider area and that this should be given significant weight in support of the appeal. Both of these factors arose in the context of other material considerations relevant to the planning balance. Within this category of matters the Inspector addressed the accommodation needs of the appellant in the following terms:

“Accommodation needs of the appellant

33.

This consideration overlaps with an assessment of the proposal against the requirements of Policy CP13. Nonetheless it is a matter that also affects the overall balance. It would be desirable for Mr Whitcher to have a settled base to make it easier for him to have access to his four children. Three of them are now grown up and live a settled existence. The youngest, Adam, is still at school and stays with his father at weekends. A base is also needed because Ms Foster and her daughter do not travel.

34.

For the first forty years of his life Mr Whitcher was brought up in, and travelled from, a series of conventional dwellings located outside the National Park. He lived with Ms Foster in a conventional dwelling until family relations became strained and he moved out. I am not persuaded that there is the same imperative for a caravan site base as there would be for someone who has always lived in a caravan. In these circumstances, although Mr Whitcher has a cultural preference for a caravan site, I consider his accommodation needs attract only moderate weight.”

The Inspector then went on to consider the appellant’s personal circumstances before reaching a conclusion on all of the other material considerations which he had assessed. He expressed himself in the following terms:

“Personal Circumstances

35.

When Mr Whitcher starting living on the site in September 2012 there was an Enforcement Notice in place. The Council sought an injunction in the High Court and proceedings were adjourned in November 2012 pending determination of this appeal. There has been further uncertainty following the quashing of the first appeal decision. It is not surprising that his doctor confirms that he suffers from anxiety symptoms. Ms Foster also suffers from depression. I do not underestimate the effect of stress and depression on lives but the initial cause of the current situation was the decision to occupy a site in defiance of an Enforcement Notice.

36.

If the appeal is dismissed it is likely that the injunctive action would be followed through and Mr Whitcher, Ms Foster and Jasmine would be homeless. It is probable that Ms Foster and Jasmine would move back into conventional housing. It would also be possible for Mr Whitcher to use a conventional property as a base as he has done in the past. It would not necessarily follow, therefore, that the family would need to split up, or that Mr Whitcher would have to resort to a roadside existence although he might choose to do so. Whilst there would be a move to a new location it is reasonable to suppose that it would be within the Salisbury/Southampton area where access to health services would be available, that Jasmine would be able to continue to travel to college, and that both she and her mother would be able to travel to work.

37.

I consider the personal circumstances of the existing occupiers of the appeal site add some further moderate weight in support of the proposal.

Conclusion on other considerations

38.

General unmet need attracts significant weight. The fact that Mr Whitcher has until recently always operated from a conventional dwelling limits the weighting for accommodation needs to moderate. It would be desirable for Mr Whitcher to be in a settled location for access to health services health (sic) and to his four children, again there is the option of returning to a conventional dwelling and it would certainly be the most likely option for Ms Foster and Jessica. Only moderate weight attaches to personal circumstances.

39.

I do not find that the delay in preparing a National Park specific Gypsy and traveller accommodation assessment, the reliance on Policy CP13 or the absence of site allocations to be unreasonable. Therefore failure of policy does not add to the harm in this case.”

The Inspector then drew together the planning balance and determined that overall the balance lay against the proposal. Before reaching his conclusions on the appeal the Inspector also considered it necessary to assess whether or not a temporary permission should be granted in particular bearing in mind that the second defendant had been unable to demonstrate that it had a five year supply of sites for Gypsies and travellers as required by PPTS. The relevant policy in PPTS is provided by paragraph 9(a) which sets out the need to demonstrate a five year supply. In relation to temporary planning permissions paragraph 25 of PPTS provides as follows:

“25.

Subject to the implementation arrangements at paragraph 28, if a local planning authority cannot demonstrate an up-to-date five-year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission.”

There is no dispute but that this was an application to which paragraph 25 applied under the transitional provisions bearing in mind the date which it was made as set out above. The Inspector’s conclusions in relation to temporary permission were set out as follows:

“45.

The PPTS advises that where there is a lack of a five year supply of sites it should be a significant material consideration. However since I find that the appellant does not need a site in the National Park the situation is unlikely to change at the end of any temporary period. This being so, a temporary permission would be contrary to the advice in the PPG. The evidence is that alternative sites would be hard to find and the appellant has limited resources. However in this instance the option of conventional housing would be a realistic option from where the appellant could continue to search for another site. On balance, although harm to the National Park would be limited to a finite period, I consider it would still be substantial and would not be outweighed by other considerations.”

The Inspector went on to draw all of the matters which he had considered together in his conclusions in the following terms:

“Conclusion

46.

The NPPF seeks to restrict development in National Parks which would harm their landscape quality. In accordance with this broad objective Core Strategy Policy CP13 limits traveller development to that which needs to be located in the National Park. The proposal does not comply with Policy CP13. Substantial harm arises from this policy conflict and further significant harm as a result of the actual landscape effect on the ground. This harm is not outweighed by other considerations which favour the proposal, namely the wider unmet need for sites, the accommodation needs of the occupiers and their personal circumstances. This would be an unsustainable development contrary to the NPPF and development plan policies set out.

47.

Dismissing the appeal would result in Mr Whitcher, Ms Foster and Jessica (sic) losing their home and would engage their human rights to respect for their family life and home. For the reasons set out above I do not consider it would be necessary for Mr Whitcher to take up a roadside existence or for the family to split up, notwithstanding his cultural preference for a caravan. It is in the best interests of Jasmine to have stability in her family life. She and her mother are not travellers and this stability can be provided just as well in conventional housing. There would be no need to disrupt her attendance at college or her employment. Whilst her best interests are a primary consideration they are not determinative and the actual weight to be given to (sic) in the balancing exercise depends on the degree of harm identified. In this case the adverse effects on the accommodation needs and personal circumstances of Jasmine warrant moderate weight.

48.

Human rights are integral to considering personal circumstances and accommodation. As such they are already part of the planning balance. Having regard to the alternatives available to the appellant and his dependants and the policy and environmental harm to the National Park I consider dismissing the appeal is the minimum action necessary to avoid the harm and would be proportionate response to this harm.

49.

For the reasons given above I conclude that the appeal should be dismissed.”

The claimant made an application for a full award of costs against the second defendant at the inquiry. So far as relevant to these proceedings the following passages from the decision refusing the costs award are in point. Firstly, reliance was placed on paragraph 5 of the response to the claimant’s application made by the second defendant which provides as follows:

“5.

The matter of site-specific need has been properly explored. The appellant has simply not shown that he has a need to be located in the NFNP. What has to be produced to satisfy this test is not limited to questions of local connection. It has been shown that the circumstances of need surrounding the Forest View permission were not comparable. ”

The Inspector’s reasons for refusing the application were principally recorded in paragraphs 9 and 10 of the costs decision which provided as follows:

“9.

In the quashed decision the Inspector was found to have misinterpreted Policy CP13. I cannot say how he would have interpreted the policy if the HTAA information had been produced. My conclusion is that the two stage test is correct because that is the way the first part of the policy is worded. The second part of the test is whether there is a specific need for a site in the National Park. The appellant provided good evidence of his family connections with the area but the NPA was entitled to conclude that, in the absence of relevant previous residence, employment ties or other supporting personal circumstances, this was not sufficient evidence of a local need. In the event I agreed with the NPA.

10.

The NPA does not seek to rely on local connections although they are part of a consideration of local need. Restricted policies are appropriate in National Parks and it is not unreasonable that traveller proposals that do not need to be in the National Park are refused.”

Mr Stephen Cottle, who appears on behalf of the claimant, advances five grounds on which it is contended that the decision of the Inspector was flawed. Under Ground 1 it is contended that far from applying the interpretation of the policy provided by Mr Straker QC and posing a two fold test in relation to need where the second element of that test was whether or not there was a need for the site to be located within the National Park, the Inspector had imposed a test of requiring the claimant to demonstrate that he could not live outside the National Park. This was an error of law arising from the misinterpretation and misapplication of policy CP13. Ground 2 is closely related to Ground 1 and is the contention that the Inspector erred in not concluding that the claimant had in fact complied with both of the requirements for showing need for the site comprised in the policy. Ground 3 is also related, but an alternative, whereby the claimant contends that even if the Inspector properly interpreted the policy it was inappropriate for substantial weight to be attached to any breach of it on the basis that the policy sought to “fend off” inappropriately applications for Gypsy sites, and the difficulties presented in demonstrating compliance with the policy meant that it was unlawful of the Inspector to attribute significant weight to it.

Ground 4 of the claim emphasises the importance of respecting the claimant’s cultural way of life as a Gypsy and the Article 8 rights which that engages. Mr Cottle submitted that the Inspector’s conclusions that it was in effect reasonable for the claimant to return to conventional housing trespassed onto those Article 8 rights, with an associated adverse impact upon the equality duty owed to him under the Equality Act 2010, without the Inspector having shown a proper and lawful examination of the impact on the claimant’s rights. Allied to this it was contended that it was an error for the Inspector to fail to identify and weigh in the balance the length of time it would take for the claimant to find another piece of land to use as his home.

Ground 5 focuses upon the issues associated with the potential grant of a temporary consent. Mr Cottle submits that the Inspector failed to give significant weight to the absence of a five year supply of sites as required by the PPTS in refusing to grant a temporary permission since, he submits, although it is mentioned in paragraph 45 the Inspector does not go on in his reasons to refer to the significant weight that needed to be afforded to this element of the decision.

The discretion as to whether or not to grant planning permission is governed by the provisions of section 70 of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. Determinations are to be made in accordance with the Development Plan unless material considerations indicate otherwise. In the context of this case policy CP13 of the Core Strategy is a policy of the Development Plan, and the policy contained in National Planning Guidance in the PPTS is a material consideration. The interpretation of planning policy is a question of law for the court to determine: see Tesco Stores Limited v Dundee City Council [2012] UKSC 13. The application of planning policy, once correctly and lawfully understood, in particular where its application requires the exercise of judgment is a matter for the decision maker. The question of weight to be attached to individual material considerations is a question for the decision maker not the court (see Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 per Lord Hoffmann at paragraph 57).

Under section 288 of the Town and Country Planning Act 1990 a challenge can be brought to the decision of the first defendant in relation to an appeal under section 78 of the 1990 Act. Such a challenge can only be successful if the decision is found to have been infected by an error of law. The challenge does not proceed on the basis of a reinvestigation of the planning merits of the case and bearing in mind the nature of the discretion being exercised as a matter of planning judgment it will be exceedingly difficult for a claimant to demonstrate that a decision has lapsed into Wednesbury irrationality (see Newsmith Stainless Limited v Secretary of State for the Environment Transport and the Regions [2001] EWHC Admin 74 at paragraphs 5-8). In providing a decision on an appeal under section 78 of the 1990 Act the first defendant is under a duty to give reasons for the decision. In examining those reasons the decision must be read in a fashion which it consonant with its purpose. The decision is an administrative instrument dealing with the main issues which were central to the arguments presented by the parties. It is neither a statute nor a contract and therefore should not be subjected to overly forensic analysis (see Clarke Homes Limited v Secretary of State for the Environment (1993) 66 P&CR 263 at page 270-272) The question to be addressed in relation to the adequacy of reasons is that identified by Lord Brown in South Bucks District Council v Porter (number 2) [2004] UKHL 33 namely whether the reasons are adequate and intelligible so as to give rise to substantial doubt as to whether an error of law has arisen for example through the misunderstanding of a relevant material consideration or a failure to reach a rational decision on relevant grounds. There is no need for the decision to address each and every matter which may have been raised as a material consideration in the decision making process; rather the reasons should address the main controversial issues and provide an explanation in relation to them as to how the decision has been reached. Furthermore, any party relying upon a defect in the reasons needs to show that they have genuinely been substantially prejudiced by the failure to provide adequate reasons.

A person like the claimant who has been found to be a Romany Gypsy has by virtue of their race and ethnicity a protected characteristic for the purposes of the Equality Act 2010 and in particular a public authority exercising public functions must apply the public sector equality duty created by section 149 of the 2010 Act. That provides as follows:

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to—

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

…

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.”

In addition to the public sector equality duty the recognition of the claimant as a Gypsy is also an important ingredient of his rights under Article 8 to private and family life. The particular issues faced by Gypsies under Article 8 were considered by the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 18. Having noted in paragraph 95 of the judgment of the majority of the court the difficulties which would arise if Gypsies who had unlawfully established a caravan site at a particular place were afforded different treatment to non-Gypsies who had undertaken the same conduct as a result of Article 14 of the Convention the judgment went on to address to issues under Article 8 as follows:

“96.

Nonetheless, although the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws intended to safeguard the assets of the community as a whole, such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in Buckley, the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.

…

98.

The Court does not, however, accept the argument that, because statistically the number of Gypsies is greater than the number of places available on authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the framework convention, and domestic legislations in regard to protection of minorities, that Article 8 can be interpreted as implying for States such a far-reaching positive obligation of general social policy being imposed on States.

99.

It is important to recall that Article 8 does not in terms recognise a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being have a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.

100.

In sum, the issue to be determined by the Court in the present case is not the acceptability or not of a general situation, however deplorable, in the United Kingdom in the light of the United Kingdom's undertakings in international law, but the narrower one of whether the particular circumstances of the case disclose a violation of the applicant's – Mrs Chapman's – right to respect for her home under Article 8 of the Convention.”

The court went on to scrutinise the particular facts of Mrs Chapman’s case which included that she had moved onto the land without obtaining planning permission and had been served with enforcement notices. Following the refusal of planning permission and the service of the enforcement notices two public inquiries had been held by Inspectors who had undertaken a review of the planning merits of the cases. The Inspectors had concluded that there were strong environmental reasons for the refusal of permission taking into account Mrs Chapman’s personal circumstances. The court concluded as follows:

“114.

In the circumstances, the Court considers that proper regard was had to the applicant's predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting her interests under Article 8 and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her case. The decisions were reached by those authorities after weighing in the balance the various competing interests. It is not for this Court to sit in appeal on the merits of those decisions, which were based on reasons which were relevant and sufficient, for the purposes of Article 8, to justify the interferences with the exercise of the applicant's rights.

115.

The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis for a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every Gypsy family has available for its use accommodation appropriate to its needs. Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim pursued.”

In R (on the application of Clarke) v Secretary of State for Transport Local Government and the Regions [2002] EWCA Civ 819 the Court of Appeal addressed the question of the impact on Article 8 rights of a Gypsy’s aversion to being required to occupy conventional housing. In that case the Inspector in refusing permission for the claimant Gypsy’s caravan site took into account (as detracting from the claimant’s contention that the only alternative to the appeal site was an illegal roadside pitch) the offer of permanent housing which had been made by the local planning authority. The Court Of Appeal upheld the decision of Burton J at first instance that the Inspector’s reasoning in respect of this aspect of the case was inadequate. Giving the leading judgment of the court of appeal Buxton LJ observed as follows:

“15.

Mr Ground [counsel for the local planning authority] criticised that last passage as saying that the judge had determined that the offer of conventional housing was in any event irrelevant. Read in the context of the judge's previous explanation of how the matter should be dealt with I do not think that is a fair criticism. What the judge seems to me to be directing the Inspector to, and in my respectful judgement rightly directing the inspector to, is a careful examination of the objections of the Clarke family to living in conventional housing in order to determine the extent to which Article 8 is truly engaged, and the nature of its engagement by the combination of their Gypsy identity and their opposition to conventional housing. Only when the Inspector has made that determination in clearer terms than he adopted in his present letter will it then be possible for him properly to engage in the balancing consideration that Burton J envisages in his paragraph 35 and that the European Court of Human Rights envisages in its paragraph 98.”

These authorities in relation to the particular issues raised by Article 8 in relation to Gypsies, bearing in mind their nomadic way of life and aversion to bricks and mortar housing, substantiate the particular care which needs to be exercised when taking into account the availability of conventional housing in the assessment of the interference with Article 8 rights which would be occasioned by the refusal of planning permission for a Gypsy site. The point is engaged both in the consideration of the extent of the impact upon Article 8 rights and also in the assessment of whether or not the decision reached is proportionate.

In relation to Ground 1 all parties agreed that the correct interpretation of policy CP13 was that which was provided by Mr Straker QC in the earlier challenge to the first Inspector’s decision. I also agree, and endorse, that interpretation. I am satisfied that the Inspector’s interpretation of the policy set out in paragraphs 9 and 10 of the decision letter was faithful to Mr Straker QC’s interpretation. The first element of the policy relating to a general need for further pitches in the area was made out on the evidence before the Inspector, as he accepted. The second, and controversial, element of the policy was that the appellant needed to “show a need to be within the National Park”. This observation of the Inspector reflects paragraph 38 of Mr Straker QC’s judgment.

From the start, therefore, in my view the Inspector has properly identified the correct interpretation of policy CP13. The question is whether or not Mr Cottle has demonstrated that in truth he applied a different test namely whether or not the claimant had demonstrated that he could not live outside the National Park area. Again, it was common ground that that would have been a misinterpretation of policy CP13.

In support of his contentions Mr Cottle relied upon three matters. Firstly he submitted that in the second sentence of paragraph 45 of the decision letter the Inspector had applied the wrong test. Secondly he drew attention to observations which had been made by the Inspector in the costs decision at paragraph 5. Finally Mr Cottle draws attention to the weight of the evidence which was produced by the claimant and which is recorded in particular in paragraphs 12 – 15 of the Inspector’s decision based upon evidence which was produced at the inquiry and which provided further detail in respect of the claimant’s history. Mr Cottle submitted that on the weight of the evidence the way in which the Inspector concluded that the second element of policy CP13 had not been satisfied could only have occurred if the incorrect test had been applied. He contended that the parallels to be drawn with the Forest View decision reinforced this conclusion.

I am unable to accept Mr Cottle’s submissions. I am unable to find either in paragraph 45 of the decision letter or elsewhere any cogent evidence that the Inspector applied a test other than that which was based upon a correct understanding of policy CP13. At each of the stages where he considers the question of the second or locational element of need which has to be demonstrated pursuant to policy CP13 it is couched in terms that, whilst the Inspector acknowledges the claimant’s family’s strong historical connections with the National Park, he is unable to accept that this amounts to a need for the appeal site in its National Park location. The conclusion that the need demonstrated by the appellant is a general rather than a specifically locational need is also founded upon the conclusions summarised in paragraph 16 based on the evidence that the claimant had been brought up outside the National Park and, apart from brief spells, always had a bricks and mortar base outside the National Park prior to moving to the appeal site. No serious criticism could properly be raised of the Inspector’s summary of the evidence which was offered to the inquiry. True it is that the claimant’s evidence in the form of his own evidence and the evidence of the witnesses which were called on his behalf provides greater detail and different emphasis to the Inspector’s synopsis. However, the Inspector’s analysis is factually correct and beyond criticism.

The decision at paragraph 45 accurately reflects policy CP13 in the conclusion that “the appellant does not need a site in the National Park”. Whilst Mr Cottle was correct that paragraph 5 of the costs decision puts the matter slightly differently nevertheless it needs to be recalled that this paragraph was merely recording the submissions made to the Inspector on behalf of the second defendant. The Inspector’s reasons are to be found in paragraphs 9 and 10 of the costs decision and in particular paragraph 9 where the Inspector applied the correct test of whether the claimant has shown “there is a specific need for a site in the National Park”. The Inspector’s conclusions that, “the absence of relevant previous residence, employment ties or other supporting personal circumstances” was not sufficient evidence of a local need notwithstanding the claimant’s accepted family connections with the National Park was a conclusion firmly grounded in the test required by policy CP13. Finally in relation to Forest View the Inspector provided at paragraph 17 specific conclusions which addressed the distinctions to be drawn between the circumstances leading to the grant of consent at Forest View and the circumstances of the claimant and the appeal site. I am therefore not satisfied that there is any substance in Ground 1.

Turning to Ground 2, which is closely related to Ground 1, it is clear from the matters which I have set out above that the Inspector had appropriate evidence and reached rational factual conclusions in relation to why the particular circumstances of this claimant did not meet the second locational element of need in policy CP13. Whilst that fact finding exercise was a matter exclusively for the Inspector, and for the reasons which have been set out above it is not appropriate for the court to re-determine the merits of the appeal, for my part I am entirely satisfied that the reasons set out by the Inspector adequately explain why the claimant could not meet the second locational element of need required by policy CP13. I therefore do not consider that ground 2 adds to the claimant’s case and reject it.

Ground 3 is in my view an ambitious submission. As I have set out above it is firmly established that the question of weight to be attached to relevant considerations is a matter for the decision maker. Mr Cottle has good cause to submit that the nature of policy CP13 will be such as to considerably restrict the extent of provision for Gypsy sites in the National Park. However, the Inspector took care to explain in paragraphs 11 and 18 why such a restricted approach was justified in terms of national planning policy and therefore that the policy was a legitimate tool to be used in development control. In the circumstances there was no legal flaw in the Inspector concluding that substantial weight should attach to the policy harm which he had identified by virtue of the breach of policy CP13.

Turning to Ground 4 Mr Cottle draws upon the conclusions reached by the Court of Appeal in Clarke (following the decision in Chapman v UK) to criticise the Inspector’s conclusions that it was a suitable alternative for the claimant to move to a conventional dwelling. He submits with some force that, as indicated by Buxton LJ in Clarke, where a person is a Gypsy with a nomadic lifestyle and an aversion to bricks and mortar accommodation it cannot be that conventional housing is an alternative to homelessness without taking careful account of the Article 8 implications both in terms of the cultural norms of Gypsies and the implications for proportionality. In principle that is a submission which is entirely valid. However it needs to be borne in mind that the assessment of Article 8 will in all cases be highly fact sensitive. In my view it is an over simplification which is unfair to the Inspector to suggest he simply without more concluded that the claimant could live in a conventional dwelling. In fact his factual conclusion was far more nuanced than that. As is evident from paragraphs 15, 34, 36 and 38 the Inspector’s factual conclusion was not that the claimant had or would live full-time in bricks and mortar accommodation as an alternative but rather that he had in the past, and could in the future, have as a base bricks and mortar accommodation from which he would travel both into the National Park and further afield staying away from conventional accommodation for periods whilst he was travelling. Thus unlike the situation in Clarke on the facts of the present case the Inspector was including within the balance not the opportunity for the claimant to abandon altogether his nomadic lifestyle and live permanently in conventional housing but rather that he might revert to his previous lifestyle, which he had undertaken for many years prior to acquiring the appeal site, whereby he had a bricks and mortar base but spent substantial time away from that base travelling and enjoying a nomadic way of life. It is for this reason, and based on this factual conclusion, that for instance in paragraph 34 the Inspector was able to conclude that only moderate weight could be afforded to his accommodation needs as he did not have “the same imperative for a caravan site base as there would be for someone who has always lived in a caravan.” This factual conclusions also underpins paragraph 36 where the Inspector concludes that given the opportunity for use of a conventional property as a base from which the claimant could travel he would not have to resort to a roadside existence.

In my view the Inspector’s careful analysis on this point properly reflected the impact on the claimant’s nomadic lifestyle and cultural norms as a Gypsy in both the assessment of the impact on his Article 8 rights and also the consideration of proportionality which is summarised in paragraph 48 of the decision. The Inspector’s reasoning also discharged the requirements of the public sector equality duty. In that respect as Mr Stemp who appeared on behalf of the second defendant pointed out there are similarly restricted policies within the second defendant’s Core Strategy in relation to the provision of market and affordable housing for the settled community. I am therefore unpersauded that there was any illegality in the way in which the Article 8 issues were addressed or the Inspector took account of the impact upon the claimant of the decision on his Gypsy status.

As set out above Ground 5 is more focused, and directed in particular to paragraph 45 of the decision. I am unable to find any flaw in the approach which the Inspector took to whether or not a temporary planning consent should be granted. He set out clearly in the first sentence of paragraph 45 of the decision that the lack of a five year supply of sites was a significant material consideration. He therefore clearly took account of the provisions of paragraph 25 of PPTS. Whilst he did not mention it again directly it was not in my view necessary for him to do so since it is clearly embraced by the conclusion he reaches in the final sentence of paragraph 45 that the harm which would arise as a result of a temporary permission “would not be outweighed by other considerations”. It is clear from his reasoning that those other considerations included in particular that which he had set out in the first sentence of the paragraph namely the absence of a five year supply of sites. In the circumstances therefore I am not satisfied that there is any substance in the complaints raised by the claimant under Ground 5.

For all the reasons which I have set out above it is clear in my view that the decision reached in this case was one which was free of any legal error. In those circumstances this application must be dismissed.