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

These proceedings relate to the use of Green Belt land on the west side of Selby Road, Askern, Doncaster (“the Site”) by two gypsy families for residential purposes. The First Claimant lives with his family in a mobile home on the part of the Site known as “The Thistles”. His brother, the Second Claimant, lives in another mobile home with his own family on the other part of the Site known as “Meadow View”.

In a decision issued on 1 April 2011 a planning inspector appointed by the First Defendant granted a temporary planning permission for the use of the Site as a gypsy caravan site by two named families, the First Claimant’s family and the James family, who were living on the site at that time. The conditions of the 2011 Permission included a requirement that, within three years of the grant of permission, or upon the gypsy families vacating the Site if sooner, the use would cease. The First Claimant and his family continued to live on the site beyond the end of the three year period. The James family vacated the site, but the Second Claimant and his family took their place. As a result, the local planning authority, the Second Defendant (“the Council”) issued an enforcement notice on 13 November 2014 (“the EN”).

The Claimants seek to challenge the decision of an inspector appointed by the First Defendant dated 14 August 2015, following a hearing and site visit on 7 July 2015, in which she (1) dismissed the First Claimant’s appeal under s.174 of the Town and Country Planning Act 1990 (“the TCPA 1990”) against the EN; and (2) dismissed the First Claimant’s appeal under s.78 of the TCPA 1990 against the Council’s refusal to grant a fresh planning permission under s.73A of the TCPA 1990 with new conditions so as to regularise the ongoing use of the Site by the two Claimants’ families.

There is before the court both (1) an application under s.288 of the TCPA 1990 in respect of the dismissal of the s.78 appeal; and (2) an appeal under s.289 of the TCPA 1990 in respect of the dismissal of the s.174 appeal. The hearing before the court is the substantive hearing of the s.288 application, and the rolled-up hearing of the s.289 appeal.

In Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) Lindblom J, as he then was, summarised, at para 19, the well-established legal principles relevant to consideration of a challenge to an inspector’s decision which, so far as is material, are as follows:

The Town and Country Planning (Hearings Procedure) (England) Rules 2000 as amended (“the Rules”) contain the procedural rules for planning hearings. Rule 11 deals with the procedure at the hearing.

Rule 11 provides, so far as is material:

Annex E concerns hearings procedure. E.9 (“Acceptance of late evidence in exceptional circumstances”) provides:

an explanation as to why it was not received by us in accordance with the rules; and

an explanation of how and why the material is relevant; and

the opposing party’s views on whether it should be accepted.

it is not covered in the evidence already received; and

it is directly relevant and necessary for his or her decision;

it would not have been possible for the party to have provided the evidence when they sent us their full statement of case; and

it would be procedurally fair to all parties (including interested people) if the late evidence were taken into account.

In DL21 the Inspector noted that there is no dispute that the use of the site as a gypsy caravan site is inappropriate development in the Green Belt. Consequently she identified the main issues as:

The Inspector’s findings in relation to issues (1) and (2) are not challenged. It is issues (3) and (4) that are the subject matter of these appeals.

In DL32-44 the Inspector considered whether there is a need for gypsy and traveller sites in the Borough. She noted that the inspector who determined the 2011 appeal concluded that there was a considerable unmet need (DL32/33). At the time the Council submitted its hearing statement for this appeal, it argued there was a net requirement of 31 pitches. These were to be met through the determination of applications in accordance with Policy CS13 (DL34). The Inspector stated:

The Inspector considered the evidence relating to the need for gypsy and traveller sites in the Borough (DL37-43). Her conclusion “taking all these matters into account is that the Council has not yet demonstrated that it has a five-year supply of sites, although further work may resolve the uncertainties I have identified” (DL44).

The Inspector considered that there had been “a failure of policy”, on the part of the Council, “to bring forward sites” for the gypsy and traveller community over a number of years (DL46).

At DL47-52 the Inspector then turned to the issue on which these proceedings focus:

At DL53-56 the Inspector considered the personal circumstances of the two families.

The Inspector then conducted the planning balance (DL57-67). She said:

Nor was the Inspector persuaded that the planning balance was in favour of a temporary permission (DL62-65). At DL66, considering the human rights of the Claimants and their families, she said:

The grounds of both challenges are identical and so can be taken together.

It appeared from the original grounds of challenge that the Claimants alleged the Inspector:

misunderstood and failed to apply the correct test when considering whether other available sites were “suitable” for the Claimants and their families;

failed properly to understand and to take account of the evidence in relation to the “suitability” of other sites;

failed to take account of the Claimants’ rights under Article 8 ECHR; and

failed to provide adequate reasons to explain her decision.

Mr Alan Masters, who appears for the Claimants, in his skeleton argument sought to raise a further ground, namely that there was a breach of the relevant statutory procedural rules and/or procedural unfairness and/or a breach of Article 6 ECHR as a result of the Inspector allowing the Council to rely on “late” evidence at the hearing in relation to alternative sites. He stated that he would seek leave at the hearing to amend ground 3(c) in the original grounds to add:

In support of this new ground the Claimants relied upon the witness statement dated 20 December 2015 of Mr Philip Brown, a planning consultant, who represented them at the hearing.

I allowed the application to add this additional ground of challenge, neither defendant objecting to it.

During the afternoon of 10 February 2016 the Claimants’ solicitors gave notice that having received the witness statement of Mr Gary Hildersley, the Council’s principal planning officer, on 1 February 2016 in response to Mr Brown’s witness statement, the Claimants “will be either applying for leave to respond to the statement by written submissions after the hearing tomorrow or applying for an adjournment, whichever the court considers the best course of action”. The reason given was that because Mr Brown “has recently had major surgery and has only just returned to work he has been unable to draft a response”.

At the outset of the hearing Mr Masters applied for an adjournment, alternatively for leave for Mr Brown to respond in writing to Mr Hildersley’s witness statement after the hearing. This application was opposed by Mr Gwion Lewis, who appears for the Secretary of State, and Ms Saira Sheikh QC, who appears for the Council.

I refused the application for an adjournment. There was no medical certificate from Mr Brown or any witness statement in support of the application. Mr Masters said that Mr Brown had a backlog of work as a result of his operation. That may be so, however it appears from correspondence relating to another hearing that Mr Brown was due to attend on 11 January 2016 that the major surgery he underwent was on his ankle the previous week. Mr Masters said that he saw Mr Brown, who is now on crutches, in attendance at an adjourned public inquiry on Tuesday of this week. There has been no explanation as to why Mr Brown did not give priority to responding to Mr Hildersley’s witness statement, as Mr Lewis submits he should have done, for the purposes of the present hearing.

Further Mr Lewis and Ms Sheikh both submit that it would be highly unsatisfactory for Mr Brown to respond to Mr Hildersley’s witness statement after the conclusion of the hearing. Depending on what Mr Brown says the Defendants may need to reply to the evidence and there may be the need for a further oral hearing.

I reserved my decision on that application until the conclusion of oral submissions, indicating that I would then consider further whether there were any material matters to which Mr Brown needed to respond. After hearing the submissions I formed the view that there were no such matters and that it would not be in the interests of justice for the appeals to be adjourned for Mr Brown to respond to Mr Hildersley’s witness statement, having regard to the additional time and expense that would necessarily be incurred. Accordingly I refused permission for Mr Brown to respond to Mr Hildersley’s witness statement after the hearing.

The principal ground of challenge advanced by Mr Masters in his oral submissions related to the “late” evidence. I shall therefore start with that ground, which was referred to by the parties as Ground 1.

Mr Masters submits that “late” evidence was submitted by Ms Sheikh for the Council at the hearing which “was entirely new and changed the basis of the Council’s case on availability of suitable acceptable alternative accommodation and was pivotal to the way the Inspector determined the case” (skeleton argument, para 14). The “late” evidence on which Mr Masters relied was the GTANA dated March 2015, which in his oral submissions he described as fundamentally changing the Council’s case.

In the Council’s statement of case, served in January 2015, it was the Council’s case that the Council’s unmet need for accommodation will be addressed through the determination of applications in accordance with the criteria set out in Policy CS13 and making lawful several unauthorised sites where possible (paras 6.31 and 6.32). By contrast the GTANA dated March 2015 shows a current surplus of 25 pitches, and a net surplus of 12 pitches over the next five years (pp.9-10).

Mr Masters submits that the Inspector failed to have regard to the Planning Inspectorate Hearings Procedure in relation to the acceptance of late evidence (see para 8 above). In breach of the requirement in E.9.3 the Inspector did not ask for an explanation as to why the Council had not submitted the evidence in accordance with the rules, and most importantly, had not sought Mr Brown’s views on whether it should be accepted. E.9.4 requires the Inspector to refuse to accept late evidence unless fully satisfied that it would be procedurally fair to all parties if the late evidence were taken into account. The Inspector failed to address her mind to this requirement.

Mr Masters submits that it was not procedurally fair to the Claimants for this late evidence to be taken into account, as is clear from the witness statement of Mr Brown. Mr Brown states that the Council’s case that there were alternative sites in the Borough which were reasonably available to the Claimants was “made orally at the Hearing with no prior warning” (para 7). He states (at para 8):

I agree with Mr Lewis that Mr Brown is not correct in asserting that it was not part of the Council’s written case that there were alternative sites in the Borough which were reasonably available to the Claimants. In its hearing statement the Council referred to vacancies on existing sites: at para 6.30 there is reference to “a significant number of available vacant pitches”; at para 6.31 it is said that “New pitches are currently being provided through the approval of planning applications for extensions to Council owned and run sites at Armthorpe and Lands End, Thorne”. Examples then given by the Council of sites with, or imminently to have, available space include sites at White Towers, Lands End, and Gibbon Lane, Thorne; and at para 7.3 it is noted that “recent information indicates there are vacancies on existing sites which could reasonably be occupied by the appellants. No evidence has been given that these sites are not suitable”.

Mr Masters suggested that the first time Mr Brown saw the GTANA dated March 2015 or was aware of its contents was at the hearing before the Inspector. I reject this contention. The GTANA is not listed in the list of documents produced at the hearing, attached to the DL, nor is there any suggestion in the DL that it was produced for the first time at the hearing; nor does Mr Brown in his witness statement say that he had not seen the GTANA prior to the hearing. If the document had been produced for the first time at the hearing I would have expected Mr Brown to have raised the matter with the Inspector and at the very least to have requested time to consider the detail of its contents. However there is no indication that he did so.

Moreover, when Mr Masters in his oral submissions suggested that Mr Brown had not seen the GTANA before the hearing, Ms Sheikh produced an e-mail dated 13 March 2015 from Mr Hildersley to the Planning Inspectorate, in relation to another appeal, (copied to philipbrownassociates@talktalk.net) attaching a copy of the GTANA, and giving the Council’s link where it could be found online.

The GTANA dated March 2015, as Mr Hildersley observes in his witness statement (at para 5) provides:

Ms Sheikh in her oral submissions referred me to the detail of the GTANA, and in particular to the data relating to the number of vacant pitches at pages 166-169 of the “Amended Hearing Bundle”. I do not consider it necessary to set out that data in this judgment.

Even if that be so, Mr Masters submits that the mere transmission of the new GTANA to the Inspector in March 2015 does not amount to an amendment to the Council’s written statement of case. What was required was a formal amendment of the statement of case, setting out the implications of the GTANA on the Council’s case so that the Claimants could understand how the case had changed and be in a position to meet it. I reject this submission. I agree with Mr Lewis that there was no need for a formal amendment to the Council’s statement of case. It is clear from reading the GTANA that whereas the Council had originally accepted there was an unmet need, there now was not, and the Council was providing the detail of vacancies on a number of sites (see para 37 above).

It is accepted by Mr Lewis and Ms Sheikh that at the hearing the Council provided further detail about the sites with availability, as recorded in the DL (see DL47). This, as described by Ms Sheikh, amounted to no more than an amplification of the information provided within the GTANA the GTANA providing a snapshot at a particular date. As Mr Lewis observes, the position was plainly not a static one. There necessarily had to be some updating of the information at the hearing. The Inspector had to determine the appeal on the basis of the position as at the date of the decision, having regard to the evidence she received.

That being so a prohibition on the introduction of new evidence after the submission of the Council’s statement of case would be unworkable. The statutory rules plainly provide for the introduction of new evidence (see para 7 above). Rule 11(1) gives the inspector a wide discretion to determine the procedure at the hearing. Rule 11(9) gives the inspector discretion “to alter or add to a full statement of case… so far as may be necessary for the purposes of the hearing”. However if a statement of case is to be altered or added to the inspector shall, if necessary by adjourning the hearing, give every other person entitled to appear, who is appearing at the hearing “an adequate opportunity of considering any fresh matter or document”.

Mr Brown in his witness statement states that he has over 30 years’ experience of planning matters gained in local government and private practice (para 1). He has specialised since 1994 in obtaining planning permissions for caravan sites, and associated developments, primarily for the Gypsy and Traveller communities. He states that he has frequently appeared at planning hearings and inquiries to give expert evidence on planning matters (para 2).

I agree with Mr Lewis and Ms Sheikh that in the light of Mr Brown’s extensive experience of attending planning hearings and inquiries if he had required time to consider any “late” evidence he would have known that he could have asked the Inspector for it. I consider it significant that he did not ask for an adjournment to test the veracity of “the new evidence” or to visit the sites where pitches were said to be available, or to question the site owners as to their intentions, as he now says he required (see para 8 of his witness statement at para 32 above).

Indeed it appears from para 11 of his witness statement that he was able to present evidence from the Appellant (supported by a letter signed by the site owner) that any empty pitches at Glen Bungalow were reserved for existing occupiers, and, similarly, that those at Pony Paddocks were not actually available as the occupiers were away travelling. This appears to suggest that he had some knowledge of some of the sites that the Council said were available. Mr Brown notes that the Inspector accepted the Appellant’s evidence on these sites, together with the Appellant’s evidence that personal relationships with the owner of the Holmwood site ruled that out as an option (see DL 48 se out at para 14 above).

Further I am not persuaded that there was any “late” evidence that falls within Appendix E of the Planning Inspectorate hearings procedure (see para 8 above). It seems to me that the evidence given orally at the hearing was, as I have said, the type of evidence that I would expect to be given at such a hearing to update the written evidence. In any event the hearings procedure contained in the procedural guide of the Planning Inspectorate is a non-statutory procedure. Mr Lewis described the document essentially being “a users’ guide”, intended mainly for unrepresented litigants. It is guidance (not a set of rules) covering a wide range of appeals seeking to ensure a fair outcome. Mr Lewis submits that there is a need to consider what happened on this appeal in the round and ask whether the appeal was procedurally unfair, taking into account what occurred at the hearing and having regard to the fact that there was no complaint by Mr Brown that there was any late evidence that caused him any difficulty. Adopting that test, which I consider to be correct, I conclude that even if, contrary to my view, the guidance in E9 is engaged, there was no procedural unfairness at this appeal hearing.

In his written submissions Mr Masters submits that on a proper analysis of both the evidence before the Inspector and her own test of availability (DL39), only one site could be said to be available, namely the Lands End site containing four pitches. In support of this submission Mr Masters relies on the witness statement of Mr Brown (at paras 14 and 19).

In his oral submissions Mr Masters appeared to focus more on the reasoning of the Inspector and submitted that her statement “that still leaves a number of sites where pitches are available” (DL48) fails to identify the sites in respect of which she made a finding that pitches are available.

In my view a fair reading of paras 47-51 (see para 14 above) as a whole makes clear the sites that the Inspector considered to be available. The Council said that there are vacancies on a number of sites. Eight were identified. However the First Claimant said that three of them could not be said to be available: the pitches at Glen Bungalow and Pony Paddocks were not available because the former had been reserved for future occupiers and the latter because the occupiers were away travelling. He also said the personal relationships with the owner of the Holmwood site ruled out that as an option, which the Inspector accepted. It follows that the “number of sites where pitches are available” include White Towers, Lands End, Stockbridge Lane, and Tilts Farm. In addition the Council was of the view that “some or all” of the sites at Glen Bungalow, Pony Paddocks and Hacienda “may become available in the near future if the Council resolves the occupancy issue”.

DL49 is more concerned with suitability (see ground 3 below). The First Claimant says that the standard of the sites at Stockbridge Lane and Lands End rules them out as suitable accommodation, although the Council says that there is a water supply at Stockbridge Lane, and Lands End provides up to standard pitches, including 12 new pitches. The Inspector notes that the Lands End site was criticised by the inspector in 2014 dealing with the 10 Acre Farm appeal as having a poor family environment, but comments that there is no evidence before her as to why that might be, or as to whether the criticism is still justified, although she observes the site is somewhat remote.

I do not consider that there can be any doubt as to what the Inspector is saying about the number of sites where pitches are available. The Inspector was exercising her planning judgment as she was required to do. I agree with Mr Lewis that this ground amounts to nothing more than disagreement with the Inspector’s conclusion that the Stockbridge Lane and Lands End sites were both available and suitable.

The Inspector concluded that there was “a reasonable number of different sites available or likely to become available for occupation within the near future” (DL51). She did not make definitive findings in respect of each potential site; rather she came to the general conclusion, having regard to the evidence as a whole, that it “strongly suggests that there are other sites available which they could occupy” (DL50). In coming to that general conclusion she was entitled in my view to give weight to potential vacancies at Stockbridge Lane when pitches on that site were “still vacant at the time of [her] site visit” (DL39). Moreover, I agree with Mr Lewis that even assuming that Mr Brown is correct that there were “no empty pitches” at the White Towers site during the site visit on 7 July 2015 (see his witness statement at para 12), it does not follow the Inspector should give no weight to the Council’s evidence that the site had a “small number” of vacancies (DL47). The Inspector was not only making a judgment about availability at the time of the site visit, but also about availability in the near future given her willingness to extend the time for compliance with the EN to 12 months.

Mr Masters submits that absent from the Inspector’s assessment of availability is any reference to suitability in terms required by the European Court of Human Rights in Chapman v United Kingdom [2001] 33 EWRR 18 and the domestic courts in Doncaster v Angela Smith [2007] EWHC 1034 (Admin). The Inspector, Mr Masters submits, when considering the issue as to whether accommodation is available to the Claimants, wrongly based her analysis only on an objective test of “acceptability”, failing to distinguish this with the need to take and apply a subjective test as to suitability for the particular needs of the Claimants.

In support of this submission Mr Masters in his oral submissions relied in particular on paragraph 103 in the judgment of the Court in Chapman:

The judgment continues at para 104:

I reject the submission that the Inspector failed to have regard to “the particular needs of the persons concerned”. She dealt in terms with the “personal circumstances” of the Claimants and their families, with particular regard to their work arrangements, their co-dependency as two families, and the proximity of the Site to health and education facilities. The Inspector was satisfied that all of these aspects of the families’ lives could be continued satisfactorily on the other available sites (DL53-56).

I agree with Mr Lewis that taking account of the subjective needs of the family for Article 8 ECHR purposes does not require deferring to their subjective preference as to where they wish to live. The relevant question is whether there are alternative sites which could objectively meet the needs of the family, taking account of their particular needs. I consider that that was the exercise properly carried out by the Inspector in the DL.

Mr Masters further submits that absent proper reasoning the Inspector has not provided any justification for departing from the finding of fact made in the 2014 decision in respect of the issue of suitability of all the sites, and in particular the Lands End site.

I reject this submission. The Inspector had regard to the observation of the inspector in 2014 with regard to the Lands End site (DL49); however she took a different approach from the previous inspector on the question of the suitability of the site and explained why (DL49, set out at para 14 above).

Mr Masters in his oral submissions sensibly dealt with this ground as part of Ground 3 relating to suitability of other sites.

For the reasons I have already given I am satisfied that the Inspector did have proper regard to the Article 8 ECHR rights of the Claimants and their families. She did so, in particular, at DL53-56 when considering their personal circumstances and importantly at DL 59 when conducting the planning balance. She noted that refusing to grant permanent planning permission would result in the Claimants and their families having to leave the site and find alternative accommodation which “would lead to significant disruption to their home and family life, even given the availability of other sites”. Further, she noted that “the best interests of the children are of primary consideration in this appeal”, and referred to the decision of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74. Again at DL66 the Inspector noted that dismissing the appeal would interfere with “the human rights” of the Claimants and their families “because they would lose their home and their family life would be disrupted as a result”. However “the interference with the occupiers’ human rights would be no more than is necessary to control the use of the site in the general public interest”. Accordingly she found that it would not be disproportionate (DL66). I can discern no error in this reasoning.

Mr Masters in his written submissions submitted that the Inspector failed to give adequate reasons for her decision and in particular failed to identify the correct issues and facts. In his oral submissions he appeared to subsume this ground into his submissions on grounds 2 and 3 relating to the availability and suitability of alternative sites. As I have said, I consider that the Inspector properly explained her conclusions on both availability and suitability.

I am satisfied that the reasons provided by the Inspector for the conclusions she reached are clear and more than adequate.

For the reason that I have given

the application under s.288 is dismissed, and

I refuse permission to proceed with the s.289 appeal, the grounds not being, in my view, properly arguable.