Planning permission – Green belt – Change of use – Local authority refusing claimant permission for change of use of land to gypsy and traveller caravan site – Claimant suffering disability – Defendant’s inspector refusing to grant permanent or temporary planning permission – Whether inspector erring in law – Application allowed in part
The claimant was a Romany Gypsy traveller and a single parent with three children, aged 14, 13 and 7. She was also a disabled person, suffering from joint laxity and taking medication for depression and anxiety. In July 2010, the claimant and her children moved onto land situated within the metropolitan green belt with a mobile home and touring caravan. In September 2010, her application for planning permission for change of use of the site from equestrian to a private gypsy and traveller caravan site, with a single pitch comprising one mobile home and one touring caravan was refused. However, the claimant went ahead and largely carried out the development described in her application.
In late 2010, the local planning authority (the second defendants) commenced injunction proceedings, which were deferred pending the outcome of the claimant’s appeal. The second defendants were seeking the immediate removal of the unauthorised development and the claimant’s immediate eviction. In June 2011, an inspector appointed by the first defendant secretary of state dismissed the claimant’s appeal and refused to grant either permanent or temporary planning permission. As regards temporary planning permission, the inspector noted that the identified harm to the green belt would be for a limited period and that there were no alternative, suitable sites in the area that were available and affordable. However, in all the circumstances, the balance would not be tipped sufficiently for the material considerations to clearly outweigh the harm caused.
The claimant applied under section 288 of the Town and Country Planning Act 1990 for an order quashing the inspector’s decision. She contended, inter alia, that the inspector’s conclusion that there were no very special circumstances for the grant of temporary permission was “Wednesbury” irrational and unreasonable; and he had erred .in failing to make required findings in relation to the risk of roadside existence if the claimant and her family were evicted. Alternatively the inspector had failed to give adequate reasons for not granting temporary permission.
Held: The application was allowed in part.
(1) In the particular circumstances of this case, the inspector’s conclusion in relation to temporary planning permission was irrational and unreasonable. The only reasons given by the inspector for his decision were that, in view of the amount of harm and all the other circumstances identified, the inspector did not consider that the balance would be tipped sufficiently for the material considerations to clearly outweigh the harm. However, the substantial weight previously attaching to the harm arising from inappropriate development in the green belt fell to be reduced, because it would be limited in time. Further, the advice in Circular 01/2006 meant that substantial weight was now to be attached to the level of unmet need in the area. The nature of the balancing exercise changed when the inspector considered the grant of a temporary permission. Further, the vulnerable position of gypsies generally and the need for special consideration to be given to their needs, had a particular focus when considering temporary permission for the present claimant. In addition to her status as a single gypsy mother with three young children, she was a person with compelling health needs, for whom the consequences of refusal of a temporary planning permission were potentially extremely serious.
(2) In circumstances where no alternative sites were available, or likely to become available in the foreseeable future; where injunction proceedings for immediate eviction had already been started; where the inspector found that the claimant and her children would probably have to leave the site if permission were refused; where there was a recognised risk that the claimant and her children, once evicted, would have to resort to roadside existence, which would harm the claimant’s health and cause serious harm to her quality of life and her children; and where there was no evidence that the claimant, once evicted, would in fact be offered a pitch on one of the council-run sites or anywhere else in the area, the decision that the other material considerations in this case were not sufficient to clearly outweigh the identified harm and to justify the grant of temporary permission was irrational.
(3) The inspector’s tentative findings, that there was no certainty that the claimant would resort to a roadside existence, and that the council might not evict the claimant before a pitch became available, did not save the decision to refuse temporary permission, in the context of the other findings. The probability that the claimant and her children would have to leave the site; the lack of any finding as to where they would go once evicted; and, in particular, the medical opinion as to the adverse effects of roadside existence upon this claimant’s health, the adverse effects upon the continuity of her children’s education and upon the quality of life for them all could not be said to constitute other than very special circumstances.
(4) In the present case the inspector appeared to recognise those as important factors and the question whether or not, on their eviction from the site, there was likely to be suitable, alternative accommodation available went directly to the balancing exercise required under article 8 of the European Convention on Human Rights when considering the application for temporary permission. It was incumbent on the inspector, for the purposes of that balancing exercise, to make clear findings as to what would happen in this case once the claimant was evicted and, in particular, whether it was more likely than not that she and her children would have to move to a roadside existence or whether they would be offered accommodation on a suitable, alternative site. Accordingly, the inspector’s decision in relation to temporary planning permission would be quashed. None of the additional grounds afforded any basis for interfering with the inspector’s decision.
Stephen Cottle (instructed by Community Partnership Solicitors, of Birmingham) appeared for the claimant; Stephen Whale (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
