Planning permission – Gypsy caravan site – Green belt – Respondent applying for planning permission for change of use of land to gypsy and traveller caravan site – Respondent a single parent and suffering from disability – Unmet need for gypsy sites in area – Planning permission refused – Whether planning inspector irrationally refusing to grant temporary permission – Inspector’s decision quashed – Appeal dismissed
The respondent was a Romany gypsy and a single parent with three children, aged 14, 13 and 7. She suffered from disabilities, including joint problems and depression and anxiety for which she took medication. In July 2010, she moved a mobile home and touring caravan onto land in the metropolitan green belt and took up residence there with her children. The local council refused her application for planning permission for a 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; the respondent none the less carried out that development.
The council’s proceedings for an injunction to evict the respondent were deferred pending the outcome of the respondent’s appeal against the refusal of planning permission. That appeal was dismissed in June 2011 by the appellant’s planning inspector, who refused to grant either a permanent or a temporary permission. The inspector accepted that the respondent could not afford to buy a site with planning permission and that the two council-run gypsy caravan sites in the borough were full with waiting lists. He recognised the possibility that, if evicted from the site, the respondent would not only lose her home but might have to resort roadside camping. He none the less concluded that the harm to the green belt was not clearly outweighed by the other material considerations.
The inspector’s decision was quashed on an application to the court under section 288 of the Town and Country Planning Act 1990. The judge held that the inspector’s refusal of temporary permission had been irrational in light of: (i) the reduced harm to the green belt in the case of a temporary permission; (ii) the government advice in Circular 01/2006 requiring substantial weight to be attached to the level of unmet need in the area; and (iii) the duty, for the purposes of Article 8(2) of the European Convention on Human Rights, to have regard to the best interests of the children as a primary consideration. She held that the question of whether suitable alternative accommodation was likely to be available went directly to the balancing exercise required under Article 8 when considering a temporary permission and that the inspector had erred in failing to make a finding as to whether the respondent would, as opposed to might, have to resort to roadside camping if temporary permission were refused: see [2012] EWHC 3192 (Admin); [2012] PLSCS 251. The appellant appealed.
Held: The appeal was dismissed.
The judge had dealt properly with the respondent’s challenge to the inspector’s decision on the grounds of Wednesbury unreasonableness and had not strayed impermissibly into a judgment on the planning merits. She had directed herself by reference to the relevant authorities and had approached the respondent’s Wednesbury challenge with due regard to the hurdle to be overcome by a claimant advancing such a challenge: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72 and Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74; [2001] PLSCS 30 considered. The question of temporary planning permission fell to be considered in the light of the guidance contained in Circular 01/2006, including the requirement to attach substantial weight to an unmet need for alternative gypsy and traveller sites. The judge had correctly spelled out the link between that requirement and the circular’s stated intention of helping to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without having an alternative site to move to.
Against that background, the judge had been correct to scrutinise the inspector’s reasoning with great care. She had been entitled to criticise the inspector’s failure to make any finding as to whether it was more likely than not that the respondent and her children would have to resort to roadside camping if temporary permission were refused. A finding on that issue went to the heart of the balancing exercise required and it was not sufficient simply to treat that outcome as possible or uncertain. If the family were to face a roadside existence in the event of refusal of temporary permission, that would involve a far more serious interference with their Article 8 rights, especially through the impact on health and education, than if they were likely to obtain alternative accommodation. The issue therefore went to the core of the Article 8 analysis. It was also important on the issue of harm to the green belt in circumstances where roadside camping was likely to be just as harmful to the green belt and potentially more harmful to the countryside. Although the grant of temporary permission would still result in the identified harm, the overall balance would necessarily be affected if the harm resulting from the refusal of temporary permission would be equal to or greater than the harm resulting from the grant of such permission.
There had been ample material before the inspector on which to make a finding as to the likelihood of roadside camping if temporary permission were refused. It was far from inevitable that the inspector would have reached the same conclusion if he had made a finding on the likelihood of roadside camping and had followed through its implications. Accordingly, the inspector’s refusal of temporary planning permission was not a reasonable reflection of the factors that he was required to take into account in that context.
Stephen Whale (instructed by the Treasury Solicitor) appeared for the appellant; Charles George QC and Stephen Cottle (instructed by Community Partnership, of Birmingham) appeared for the respondent; the council did not appear and were not represented.
Sally Dobson, barrister
Moore v Secretary of State for Communities and Local Government and another
Planning permission – Gypsy caravan site – Green belt – Respondent applying for planning permission for change of use of land to gypsy and traveller caravan site – Respondent a single parent and suffering from disability – Unmet need for gypsy sites in area – Planning permission refused – Whether planning inspector irrationally refusing to grant temporary permission – Inspector’s decision quashed – Appeal dismissed The respondent was a Romany gypsy and a single parent with three children, aged 14, 13 and 7. She suffered from disabilities, including joint problems and depression and anxiety for which she took medication. In July 2010, she moved a mobile home and touring caravan onto land in the metropolitan green belt and took up residence there with her children. The local council refused her application for planning permission for a 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; the respondent none the less carried out that development.The council’s proceedings for an injunction to evict the respondent were deferred pending the outcome of the respondent’s appeal against the refusal of planning permission. That appeal was dismissed in June 2011 by the appellant’s planning inspector, who refused to grant either a permanent or a temporary permission. The inspector accepted that the respondent could not afford to buy a site with planning permission and that the two council-run gypsy caravan sites in the borough were full with waiting lists. He recognised the possibility that, if evicted from the site, the respondent would not only lose her home but might have to resort roadside camping. He none the less concluded that the harm to the green belt was not clearly outweighed by the other material considerations.The inspector’s decision was quashed on an application to the court under section 288 of the Town and Country Planning Act 1990. The judge held that the inspector’s refusal of temporary permission had been irrational in light of: (i) the reduced harm to the green belt in the case of a temporary permission; (ii) the government advice in Circular 01/2006 requiring substantial weight to be attached to the level of unmet need in the area; and (iii) the duty, for the purposes of Article 8(2) of the European Convention on Human Rights, to have regard to the best interests of the children as a primary consideration. She held that the question of whether suitable alternative accommodation was likely to be available went directly to the balancing exercise required under Article 8 when considering a temporary permission and that the inspector had erred in failing to make a finding as to whether the respondent would, as opposed to might, have to resort to roadside camping if temporary permission were refused: see [2012] EWHC 3192 (Admin); [2012] PLSCS 251. The appellant appealed.Held: The appeal was dismissed. The judge had dealt properly with the respondent’s challenge to the inspector’s decision on the grounds of Wednesbury unreasonableness and had not strayed impermissibly into a judgment on the planning merits. She had directed herself by reference to the relevant authorities and had approached the respondent’s Wednesbury challenge with due regard to the hurdle to be overcome by a claimant advancing such a challenge: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72 and Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74; [2001] PLSCS 30 considered. The question of temporary planning permission fell to be considered in the light of the guidance contained in Circular 01/2006, including the requirement to attach substantial weight to an unmet need for alternative gypsy and traveller sites. The judge had correctly spelled out the link between that requirement and the circular’s stated intention of helping to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without having an alternative site to move to.Against that background, the judge had been correct to scrutinise the inspector’s reasoning with great care. She had been entitled to criticise the inspector’s failure to make any finding as to whether it was more likely than not that the respondent and her children would have to resort to roadside camping if temporary permission were refused. A finding on that issue went to the heart of the balancing exercise required and it was not sufficient simply to treat that outcome as possible or uncertain. If the family were to face a roadside existence in the event of refusal of temporary permission, that would involve a far more serious interference with their Article 8 rights, especially through the impact on health and education, than if they were likely to obtain alternative accommodation. The issue therefore went to the core of the Article 8 analysis. It was also important on the issue of harm to the green belt in circumstances where roadside camping was likely to be just as harmful to the green belt and potentially more harmful to the countryside. Although the grant of temporary permission would still result in the identified harm, the overall balance would necessarily be affected if the harm resulting from the refusal of temporary permission would be equal to or greater than the harm resulting from the grant of such permission.There had been ample material before the inspector on which to make a finding as to the likelihood of roadside camping if temporary permission were refused. It was far from inevitable that the inspector would have reached the same conclusion if he had made a finding on the likelihood of roadside camping and had followed through its implications. Accordingly, the inspector’s refusal of temporary planning permission was not a reasonable reflection of the factors that he was required to take into account in that context.Stephen Whale (instructed by the Treasury Solicitor) appeared for the appellant; Charles George QC and Stephen Cottle (instructed by Community Partnership, of Birmingham) appeared for the respondent; the council did not appear and were not represented.Sally Dobson, barrister
