Town and country planning – Planning permission – Gypsies – Second defendant local planning authority refusing to grant fresh planning permission for use of land as gypsy caravan site – Claimants applying to quash decision of inspector appointed by first defendant secretary of state dismissing appeal against refusal – Whether decision involving procedural unfairness – Whether alternative sites being available – Whether inspector failing to distinguish between availability and suitability – Whether inspector failing to consider claimants’ human rights – Whether inspector failing to give adequate reasons – Application dismissed
In April 2011, a planning inspector appointed by the first defendant secretary of state granted temporary planning permission to use green belt land in Selby Road, Askern, Doncaster as a gypsy caravan site by two named families, including that of the first claimant. The conditions included a requirement that, within three years of the grant of permission or upon the families vacating the site if sooner, the use would cease. The first claimant and his family continued to live on the site after the end of that three-year period. The second family vacated the site but the second claimant and his family took their place. As a result, the second defendant local planning authority issued an enforcement notice.
An inspector appointed by the first defendant dismissed the first claimant’s appeal, under section 78 of the Town and Country Planning Act 1990, against the second defendants’ refusal to grant a fresh planning permission with new conditions to regularise the on-going use of the site by the claimants’ families. The claimants applied to quash that decision, under section 288 of the 1990 Act.
The claimants contended that: (i) there had been a breach of the Planning Inspectorate Procedural Guide for Planning Appeals, procedural unfairness and/or breach of article 6 of the European Convention on Human Rights, as late evidence submitted by the second defendants had been entirely new and changed the basis of its case on the availability of suitable acceptable alternative accommodation, had been pivotal to the way the inspector determined the case; (ii) on a proper analysis of the evidence before the inspector and her own test of availability, only one alternative site had been available; (iii) the inspector had failed to distinguish between availability and suitability, having assessed availability without considering suitability in terms required by the European Court of Human Rights; (iv) the inspector had failed to take account of the claimants’ rights under article 8 of the European Convention on Human Rights; and (v) the inspector had failed to give adequate reasons for her decision.
Held: The application was dismissed.
(1) In the light of the extensive experience of the claimant’s planning consultant in attending planning hearings and inquiries, he would have asked for time to consider any late evidence, had he required it. It was significant that he had not asked for an adjournment to test the veracity of the new evidence, to visit the allegedly available sites or to question the site owners as to their intentions. Further, there had been no late evidence within the procedural guide other than that expected to update the written evidence; and even if the guide was engaged, there had been no procedural unfairness in the appeal hearing.
(2) There could be no doubt what the inspector was saying about the number of sites with available pitches, as required in the exercise of her planning judgment. The inspector had concluded that there were a reasonable number of different sites available or likely to become available for occupation within the near future. She had not made definitive findings in respect of each potential site but had come to a general conclusion, having regard to the evidence as a whole, that there were other sites available which the claimants could occupy. In reaching that general conclusion, she had been entitled to give weight to potential vacancies. Even assuming that there had been no empty pitches at one site during a site visit, it did not follow that the inspector should give no weight to the second defendants’ evidence that the site had had a small number of vacancies. The inspector had not only been making a judgment about availability at the time of the site visit, but also in the near future, given her willingness to extend the time for compliance with the enforcement notice.
(3) Taking account of the subjective needs of the family for article 8 purposes did not require deferring to their subjective preferences as to where they wished to live. The relevant question was whether there were alternative sites which could objectively meet the families’ requirements, taking account of their particular needs. That exercise had been properly carried out by the inspector. She had had regard to observations of the previous inspector on the question of suitability of the site, had taken a different approach and had explained why: Chapman v United Kingdom (Application 27238/95) [2001] EHRR 18 and Doncaster Metropolitan Borough Council v First Secretary of State [2007] EWHC 1034 (Admin) considered.
(4) The inspector had had proper regard to the article 8 rights of the claimants and their families. There was no discernible error in her reasoning that the interference with their human rights would not be disproportionate.
(5) The inspector had properly explained her conclusions on both availability and suitability. The reasons provided for the conclusions she had reached were clear and more than adequate.
Alan Masters (instructed by Lester Morrill, of Leeds) appeared for the claimants; Gwion Lewis (instructed by the Government Legal Department) appeared for the first defendant; Saira Kabir Sheikh QC (instructed by Doncaster Metropolitan Borough Council) appeared for the second defendants.
Eileen O’Grady, barrister
