Green belt – Planning policy – Gypsies using land as caravan site – Planning inspector granting temporary permission for two years and quashing enforcement notice – Planning authority challenging both decisions – Whether inspector failing to take account of material consideration – Application and appeal dismissed
The second defendant was a Romany gypsy. He applied for planning permission to develop an area of green-belt land as a caravan site for two families. The claimant local planning authority refused to grant permission and issued an enforcement notice requiring the discontinuance of the use of the land for the stationing of caravans.
The second defendant appealed against both the decision and the notice. Following an inquiry, an inspector appointed by the first defendant secretary of state decided that the resulting harm to the green belt would be such that a permanent permission should not be granted. However, he felt that it would be appropriate to grant temporary planning permission for two years since, in accordance with paras 45 and 46 of Circular 1/2006: Planning for Gypsy and Traveller Caravan Sites, although there was an unmet need for gypsy and traveller sites in the area, there was a reasonable expectation that new sites would become available at the end of that period to meet that need. The inspector also quashed the enforcement notice.
The claimants applied to quash the decision to grant temporary permission and appealed against the quashing of the enforcement notice. They contended that, having found that a permanent permission should not be granted, the inspector had failed to take into account a material consideration, namely advice contained in para 109 of Planning Circular 11/95: Use of Conditions in Planning Permission, to the effect that if there were grounds for refusing permanent permission that could not be met by the imposing conditions, there should also be grounds for refusing temporary permission.
Held: The application and appeal were dismissed.
In his decision letter, the inspector was required to explain in clear terms why he had reached his decision and to set out the matters that had materially influenced him in arriving at that conclusion. However, the letter was to be read in a straightforward and down-to-earth way, looking broadly at the inspector’s findings and at the real sense of the decision: Clarke Homes v Secretary of State for the Environment (1993) 66 P&CR 263 and ELS Wholesale (Wolverhampton) Ltd v Secretary of State for the Environment (1988) 56 P&CR 69 considered.
Approaching the matter upon the basis of Lord Woolf’s tests in EC Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P&CR 361, the inspector’s decision was entirely in accordance with the policy of the 2006 circular, which made express reference to the 1995 circular. The inspector had plainly found that the two circulars did not conflict. The fact that he did not make specific reference to para 109 did not demonstrate that he had failed to take it into account. He must have been familiar with such a long-established principle and that para 109 had to be read first in conjunction with para 110 and then with paras 45 and 46 of the 2006 Circular.
If each circular were considered in its entirety and the two were then read together as congruent statements of policy, it became clear that if it were “necessary”, a temporary condition would be appropriate where planning permission would otherwise be refused. Under the combined effect of the two circulars, although it would not be sufficient to say that unacceptable harm on a permanent basis would be acceptable on a temporary basis, that was a necessary precondition and there was also the need for an additional factor, that is something more than making the unacceptable harm temporary.
The inspector had envisaged, on the unchallenged evidence before him, a significant change in planning circumstances at or before the end of the two-year period. His decision to grant temporary permission was based upon that consideration, and not because damage to amenity, which would be intolerable if permanent, might be tolerable on a temporary basis. The inspector had made it clear that his expectation of a change in planning circumstances was the additional and distinct factor.
Patrick Darby (instructed by the legal department of Bromley London Borough Council) appeared for the claimants; Hereward Phillpot (instructed by the Treasury Solicitor) appeared for the first defendant; Valerie Easty (instructed by the Community Law Partnership, of Birmingham) appeared for the second defendant.
Eileen O’Grady, barrister
