1. MR JUSTICE SULLIVAN: This is an application under section 287 of the Town and Country Planning Act 1990 (“the Act”) to quash the North Somerset Replacement Local Plan (“the Local Plan”) which was adopted in March 2007, alternatively to quash Policy H/12 in the Local Plan.
2. Policy H/12 deals with sites for gypsies and travelling show people. Circular 1/94 advised local planning authorities that local plans:
“… should wherever possible identify locations suitable for gypsy sites, whether local authority or private sites. Where this is not possible, they should set out clear, realistic criteria for suitable locations, as a basis for site provision policies. …”
3. Policy H/12 does not identify suitable locations for gypsy sites. Instead, it sets out a number of criteria for the location of such sites.
4. It is unnecessary for present purposes to set out the detail of Policy H/12, because the claimant’s principal complaint is that such a criteria-based policy is not compliant with the advice of the Panel who conducted the examination in public (“the EIP”) into the Bath and North East Somerset, Bristol, North Somerset and South Gloucestershire Joint Replacement Structure Plan (“the Structure Plan”) in 1999. The Panel was critical of the record of the four local planning authorities in making provision for gypsy sites. Its recommendations included a recommendation that Policy 33 in the draft Structure Plan:
“… should be modified by the deletion of the reference to sites for gypsies and travellers. A separate policy should be inserted in the Plan which requires that suitable locations for gypsy and traveller sites will be identified in Local Plans, that the provision of sites will be encouraged in accordance with local assessment of need, and that sites should be located close to services and facilities including schools …”
5. The four local planning authorities did not follow that recommendation of the Panel. Policy 37 in the adopted Structure Plan did not require sites to be identified in Local Plans. The policy was challenged, under section 287, in Butler v Bath and North East Somerset District Council, Bristol City Council, North Somerset District Council and South Gloucestershire District Council [2003] EWCA Civ 1614, [2004] JPL 941. The Court of Appeal quashed the policy. Carnwath LJ (with whom Waller and Peter Gibson LJJ agreed) said this in paragraphs 28 and 30 of his judgment:
“28. The point is a short one, and at first sight the answer seems to me reasonably clear. National policy draws a clear distinction between the identification of actual locations in a local plan and the setting of policy criteria. The preference is for the former. The EIP panel must have had that distinction in mind. They took the view that the existing ‘criterion-based policies’ of the local authorities had failed to meet the needs of the Gypsy community, and that more was needed by way of guidance. Their recommendation that local plans should ‘identify suitable location’ must be read in that context. They wanted something more specific than mere policy criteria.
…
30. By contrast Policy 37 does not require local plans to identify locations. It requires them to ‘set out policies’, and indicates some of the criteria which should guide the search. The form of the new wording must have been intentional. Whether or not the authorities thought they were departing from the recommendation, that in my view is the clear effect of what they did. The authorities were entitled to make such a change, but only after complying with the regulation.”
In summary, the relevant regulations required the authorities, if they proposed to differ from the Panel’s recommendation, to set out their reasons for so doing, and they had not done so.
6. Dr Murdock, a travellers adviser with the Community Law Partnership, the claimant’s solicitors, objected to Policy H/12 in the deposit version of the Local Plan upon the basis that, in summary:
“(a) no land has been allocated for gypsy caravan sites in the [Local Plan], despite strong suggestion to that effect by EIP Report on [the Structure Plan]; (b) [Local Plan] policies do not derive from quantitative assessment of need, in line with PPG3, Circular 1/94 and PPG12.”
7. The defendant’s response to that objection at the Local Plan inquiry referred to the advice in Circular 1/94, and continued:
“In the absence of an assessment of need being provided by the Objector, the intention is to await the findings of the proposed quantitative assessment of need, taking account of existing provision, before further consideration is given to the issue of the need for site allocations in the Replacement Local Plan. Following the quashing of Policy 37 of the Joint Replacement Structure Plan in the
8. By the time the Local Plan inspector wrote his report to the defendant council, Circular 1/94 had been replaced by Circular 01/2006, which deals with “Planning for Gypsy and Traveller Caravan Sites”. It explains how those sites are to be planned for under the new development plan system. The Circular contains an overview of the planning process which explains that, in summary, there are three stages. Firstly, gypsy and traveller accommodation assessments (GTAAs) assess the need and identify the pitch requirements for each local authority area. Those pitch numbers are then taken forward into the second stage, in which the Regional Spatial Strategy (“RSS”) checks and/or modifies those pitch numbers, considering the matter from a regional perspective, and then, having done so, the RSS specifies pitch numbers for each local authority. Those pitch numbers are then carried forward into the third stage, which is a Development Plan Document (“DPD”), which is expected to identify specific sites to match the pitch numbers provided by the RSS. The policy advice in Circular 01/2006 is that:
“30. The number of pitches set out in the RSS must be translated into specific site allocations in one of the local planning authority’s DPDs that form part of the LDF [Local Development Framework].
…
33. Local authorities must allocate sufficient sites for gypsies and travellers, in terms of the number of pitches required by the RSS, in site allocations DPDs. A requirement of the Planning Act (2004) is that DPDs must be in general conformity with the RSS. Criteria must not be used as an alternative to site allocations in DPDs where there is an identified need for pitches. Local planning authorities will need to demonstrate that sites are suitable, and that there is a realistic likelihood that specific sites allocated in DPDs will be made available for that purpose. DPDs will need to explain how the land required will be made available for a gypsy and traveller site, and timescales for provision.”
9. Thus it is clear that whether Policy H/12 is quashed or not, it will have to be replaced in due course by a policy which conforms with the policy advice in Circular 01/2006. That need was clearly appreciated by the Local Plan inspector. In his covering letter dated 12th April 2006 to the defendant, the inspector said in paragraph 21:
“Finally in this chapter [Chapter 8 of his report], I draw attention to the urgent need to address the accommodation of gypsy and traveller families, highlighted in a letter to all Local Planning Authorities in November 1999 and more recently in Circular 01/2006. This matter should be brought forward urgently in future DPDs.”
10. In Chapter 8 of his report the inspector had identified as one of the main issues in respect of Policy H/12:
“Whether the policy should identify sites based upon an assessment of need?”
11. In his reasoning and conclusions in respect of that main issue, the inspector referred to Circular 1/94 and said:
“27.1. Paragraph 9 of Circular 1/94 expects LPAs to make proposals in this regard and this was reflected in JRSP [the Structure Plan] policy 37. However, that policy was quashed in the Court of Appeal and therefore no longer forms part of the Development Plan. It has not been replaced, although there remains a need to undertake this, particularly in the light of the Government’s letter of 16 November 1999 and more recently the consultation paper of December 2004. At paragraphs 26 and 27 of that document it is evident that a replacement circular would make the identification of sites a requirement and that only exceptionally, should reliance be placed upon criteria based policies. The new circular (01/2006) has now been published and will need to be taken into account. It strengthens the obligation upon LPAs to carry out surveys and to identify sites.
27.2. However, I have no information before me to establish whether the commitment made in paragraph 8.120A of the RLP [Replacement Local Plan] to carry out an assessment of demand has been carried out. Therefore, I cannot recommend that additional sites be allocated as part of this RLP. However, it is imperative that rapid progress be made to producing a DPD about this matter under the LDF system.”
12. Having dealt with various detailed textual matters, the inspector said in paragraph 27.6:
“Because of the timing and the lack of any representations in its regard, I have not commented upon the implications of the new Circular 1/2006. In responding to my comments, the Council should take into account this latest expression of Government policy.”
13. The inspector’s recommendations, so far as relevant for present purposes, included the following:
“27.7. The Council should carry out an assessment of demand and produce a development plan document to allocate any sites needed, as soon as possible.
…
27.9. Review and up-date the supporting text as suggested and in the light of Circular 01/2006.”
14. In respect of the latter recommendation, the defendant did modify the Local Plan so as to include reference in the explanatory text to Circular 01/2006. The Circular is referred to in paragraph 8.105 and 8.107 of the explanatory text. It is sufficient to refer to the latter paragraph, which is in these terms:
“8.107 Circular 01/2006 states that local authorities must allocate sufficient sites for gypsies and travellers, in terms of the number of pitches required by the Regional Spatial Strategy. This should be undertaken in site allocations development plan documents. Criteria must not be used as an alternative to site allocations in development plan documents where there is an identified need for pitches. Guidance on the requirement for pitches is a matter that is expected to be addressed by a Review of the South West Regional Spatial Strategy, and the identification of sites. If required this will need to be addressed through the appropriate development plan document in the North Somerset Local Development Framework. The approach of Policy H/12 is to set out a sequential locational search together with the detailed site-related criteria relevant to the consideration of proposals for gypsy sites.”
15. It was submitted on behalf of the claimant that the Local Plan, alternatively Policy H/12, should be quashed because in formulating the criteria-based policy the defendant had ignored the advice of the EIP Panel in 1999 and in approving the policy the inspector had not resolved the conflict between the objectors and the defendant as to whether an assessment of need had or had not been carried out. It was submitted by Mr Jones on behalf of the claimant that if the inspector was in any doubt about that matter, then he should simply have asked the defendant whether or not an assessment had been carried out.
16. The submission that the defendant should have considered the EIP Panel’s recommendation is in substance the same as the objection that was made to the Local Plan by Dr Murdock, namely that Policy H/12 should not simply identify criteria to be applied to applications for gypsy caravan sites. Instead, it should have identified sites to meet an established need, in accordance with the policy advice in Circular 1/94, which had been repeated with somewhat more force by the EIP Panel, and which was to be advised with even more force in Circular 01/2006.
17. The inspector was very well aware of all this policy advice and was therefore very well aware of the shortcomings of Policy H/12 as a criteria-based rather than a site-specific policy. However, in the absence of any reliable assessment of demand, he was plainly not in any position to recommend a specific number of additional sites, much less was he able to recommend any particular locations which might meet such a numerical requirement.
18. It is not necessary to resolve the question whether no assessment had been carried out by the defendant, as maintained by the objectors, or whether there was simply no evidence as to whether or not an assessment had been carried out, which was the inspector’s position in paragraph 27.2 of his report, because if there had been no assessment then the inspector’s approach would surely have been reinforced. the inspector adopted the pragmatic course of not recommending any substantial modifications to the wording of Policy H/12 itself (the minor textual amendments he suggested in paragraph 27.3 are not relevant for present purposes), but instead he recommended that the defendant should carry out an assessment of demand and produce a development plan document that allocated the sites needed as soon as possible. Thus Mr Jones’ submission that the inspector did not resolve the main issue is simply inaccurate. The inspector’s recommendations effectively acknowledge the deficiencies in Policy H/12 and accept that there should be a policy which identifies sites that is based on an assessment of need. The question was how to achieve that objective. The inspector’s answer was “as soon as possible through the new development plan system”. Far from being unlawful or unreasonable, that was an eminently reasonable solution to the practical problem that was posed by the defendant’s admitted slowness in assessing need and in identifying sites to meet that need.
19. Mr Jones submitted that the delays since the EIP Panel’s report in 1999, if not since the publication of the policy advice in Circular 1/94, were unacceptable and that “something should be done”. However, the inspector had to make recommendations to the defendant in the world as he found it, not in the world as he might have liked it to be. There is, therefore, no basis to quash either the Local Plan or Policy H/12.
20. However, even if I had been persuaded that there was some force in the claimant’s criticisms of the manner in which Policy H/12 had been proposed by the defendant and considered by the inspector, I would, as a matter of discretion, have declined to grant the relief sought.
21. The suggestion that the whole of the Local Plan should be quashed because of a defect in Policy H/12 is fairly described as manifestly absurd. There is no conceivable basis for quashing the whole of the Local Plan, given the very wide range of issues with which it deals and the adverse consequences of creating a policy vacuum in respect of all of those issues. There is no suggestion that there is any material defect in any other part of the plan, apart from Policy H/12. The submission that the entire plan should be quashed was a wholly irresponsible one and should not have been made on behalf of the claimant.
22. Nor would the claimant or members of the gypsy community generally be helped by the quashing of Policy H/12, thereby leaving a policy vacuum under which there would be no policy guidance whatsoever in the Local Plan in respect of the provision of sites for gypsies and travellers. Mr Jones submitted that that policy vacuum could be filled by the adoption of a new and site-specific Local Plan policy. However, I am not persuaded that the defendant in November 2008 still has any power to promote a modification to the old style Local Plan, so as to include a new policy. Structure Plans and Local Plans have been replaced as the statutory development plan by the new development plan system under the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). The 3-year transitional period has now come to an end: see Schedule 8 to the 2004 Act.
23. However, this issue was not the subject of full argument and it is unnecessary to decide whether the defendant would in 2008 legally be able to promote a modification of its old style Local Plan because, in the light of the current policy advice contained in Circular 01/2006, it is clear that that would not be an appropriate course. Under the new development plan system it is the RSS that identifies the number of pitches required. That number is then translated into specific site allocations in the Development Plan Documents. Thus any reasonable local planning authority confronted with a complete vacuum in policy terms as to what provision to make for gypsy caravan sites (which would be the case if Policy H/12 was quashed) would inevitably proceed by way of preparing fresh policies under the new development plan system, rather than by attempting to modify an old style Local Plan. That is what the defendant is doing in the present case.
24. Moreover, I am satisfied that even if it was in some way possible to revert to the old style Local Plan, the process would not be significantly quicker than following the Local Plan inspector’s recommendation and addressing the need to assess demand and to produce a Development Plan Document to allocate any sites needed as soon as possible.
25. In a witness statement Mr Reep, the Planning Policy Manager within the Development and Environment Directorate of the defendant council, has explained that the Gypsy and Traveller Accommodation (and Other Needs) Assessment took place between January and June 2007 and was published in October 2007. It estimated a requirement for 36 residential and ten transit pitches for gypsies and travellers within the area of
26. To carry forward the anticipated requirement in the Regional Spatial Strategy, work has started on the preparation of the defendant’s Gypsy and Traveller Sites Allocations Development Plan Document. Mr Fletcher, on behalf of the defendant, told me upon instructions that it was anticipated that the issues and options document would be published in March 2009 and there would then be consultation in October 2009. Having regard to the outcome of that consultation, a document in draft would be published in March 2010 and there would be an opportunity to object to that document during the latter part of that year. In due course it was anticipated that the relevant policy would be adopted in March 2011. That would roughly coincide, as I understand it, with the expiration of the Local Plan period.
27. Mr Jones expressed scepticism as to the likely progress of this timescale. However, whatever procedural course is taken by the defendant, it must be obvious that any policy which identifies sites for gypsy caravans is bound to be controversial. There may well be, for example, objections from the gypsy community, arguing that insufficient provision has been made and/or that provision has been made on the wrong sites. Equally, there may be well be objections from those who live or work in the vicinity of the sites that are identified to meet whatever need is assessed. If the process is to be thorough and fair to all concerned, it is not practicable to envisage any significant reduction in the timescale that Mr Fletcher indicated to me upon instructions.
28. Moreover, the claimant himself is not prejudiced. On 1st August 2007 he was granted temporary planning permission, until 30th August 2011, to station his caravan on his mother’s adjoining site. A personal permission was granted by the inspector on appeal, partly because the inspector felt that there was, on the evidence available to him, a significant level of need which would have to be met through the Local Development Framework process. The inspector considered that a permission until 30th August 2011 would enable that process to be completed, saying in paragraph 63:
“63. In my view the additional use of Travellers Rest [the appellant’s mother’s site] is acceptable for a temporary period until the Council can assess levels of need and allocate alternatives – or decide to allocate this site. 2010 would not provide for slippage in the LDF process but to my mind 2011, as recommended in the officer’s report, is more realistic to enable an assessment of any continuing need for the site as part of the process. In my opinion there is a reasonable expectation that this will occur within that period. …”
29. Against this background it is plain that quashing Policy H/12 would serve no useful purpose whatsoever, either for this particular claimant or for the gypsy community within the defendant’s area in general. It would leave a policy vacuum, which would be only partially met by the policy guidance in Circular 01/2006, until such time as the vacuum could be completely filled through the new development plan process. However, as indicated above, the explanatory text to Policy H/12 specifically refers to the policy guidance in Circular 01/2006. It is difficult, therefore, to see what purpose would be served by quashing the “parent” policy.
30. The court’s power to quash under section 287 is a blunt instrument. It is incumbent on all claimants who seek relief under section 287 to consider the practical implications of obtaining such relief. In my judgment, that has not been sufficiently done in the present case and for these reasons I refuse this application.
31. Yes. I think your client is legally aided, is he not, Mr Jones?
32. MR JONES: He is legally aided and I ask for the appropriate order, my Lord.
33. MR JUSTICE SULLIVAN: Yes, thank you very much.
34. Do you have any application you want to make, Mr Fletcher, given that the claimant is a legally-aided claimant?
35. MR FLETCHER: May I just take instructions?
36. MR JUSTICE SULLIVAN: Yes. (Pause)
37. MR JONES: Might I say while this is happening, I have no applications.
38. MR JUSTICE SULLIVAN: Mr Fletcher?
39. MR FLETCHER: Sorry, my Lord.
40. MR JUSTICE SULLIVAN: It should not take too long because the best you are going to get is a Pools-type order, but the question is whether you want to apply for that. Given the circumstances and the general background, you might think, since you are not actually get anything out of a Pools order anyway, you might actually, as it were, come out smelling slightly more of roses if you do not make any application.
41. MR FLETCHER: My Lord, I do not make any application.
42. MR JUSTICE SULLIVAN: A random thought from the Bench.
43. MR FLETCHER: Thank you, my Lord.
44. MR JUSTICE SULLIVAN: Thank you very much. Very useful to know that no application is being made for costs. Thank you very much.
45. So the only order, apart from dismissing the application, is to grant Mr Jones’ application that there be a detailed assessment of his publicly funded costs for Legal Services Commission purposes.
46. Thank you both very much indeed.
