Gypsies – Development – Material considerations – Gypsies purchasing land and applying for permission for use as gypsy site – Inspector granting permission notwithstanding harmful effect upon rural character and appearance of surrounding area – Whether gypsies having burden of proving non-availability or inadequacy of alternative sites – Appeal dismissed.
The second and third respondents were members of gypsy families. They had led a travelling lifestyle until 1996, when their third child was born with a life-threatening condition. The child required specialist medical care and the itinerant occupation of unauthorised sites was no longer tenable. The second and third respondents purchased a plot of land with planning permission for gypsy use. They lived there without incident until 2001, when violence became rife on the site owing to the arrival of non-indigenous gypsies.
By 2004, the second and third respondents and their family were the only pre-existing gypsy family remaining on the site. They were unable to find a suitable alternative plot in the area and therefore purchased and moved onto a nearby site that did not have planning permission for gypsy use. When the appellant local planning authority issued enforcement and stop notices in respect of their use of the land, they applied for the appropriate planning permission. A planning inspector granted permission on condition, inter alia, that only the second and third respondents and their dependants could reside there.
The inspector acknowledged that the site would have a significant adverse effect upon the rural character and appearance of the surrounding area, and that the site could not satisfactorily be assimilated into its surroundings by means of landscaping. However, she considered that other material considerations had to be taken into account in the light of section 38(6) of the Planning and Compulsory Purchase Act 2004, which outweighed the harm, including the limited immediate availability of suitable land and the exceptional personal circumstances of the family to which considerable weight had to be given.
The appellants challenged the validity of the decision to grant permission under section 288 of the Town and Country Planning Act 1990. The High Court held, inter alia, that the second and third respondents were not required to prove that other sites were not available or that particular needs could not be met from another site: [2007] EWHC 2117 (Admin); [2008] JPL 519. The appellants appealed.
Held: The appeal was dismissed.
The law was clear. Section 38(6) of the 2004 Act provided that the development plan was determinative unless material considerations indicated otherwise; there was no burden of proof on anyone. It was a matter for the planning authority, or in this case the inspector, to decide upon the material considerations and, having done so, to give each of them such weight as he or she considered appropriate. That was a matter of planning judgment for the decision maker.
The inspector had approached the question of alternative sites in an impeccable fashion and the judge was correct to conclude that there was no basis for interfering under section 288 of the 1990 Act. This was an exceptional case, where the personal circumstances of the second and third respondents’ family justified departure from the development plan. These circumstances were a material consideration, which the inspector had properly taken into account as such under section 38(6) of the 2004 Act. The grant of planning permission subject to the conditions could not be faulted.
Robert McCracken QC and Saira Sheikh (instructed by the legal department of South Cambridgeshire District Council) appeared for the appellants; James Strachan (instructed by the Treasury Solicitor) appeared for the first respondent; Marc Willers (instructed by the Community Law Partnership, of Birmingham) appeared for the second and third respondents.
Eileen O’Grady, barrister
