Gypsies – Land – Development – Travellers purchasing land and applying for permission for use as gypsy site – Permission granted notwithstanding harmful effect upon rural character and appearance of surrounding area – Whether planning applicant having burden of proving reasonable steps to find alternative site – Application dismissed
The second and third defendants were both members of gypsy families. They led a travelling lifestyle until the birth in 1996 of their third child who was born with a life-threatening condition and was not expected to live for more than a few weeks. The child required specialist medical care, so that the itinerant occupation of unauthorised sites, which had been the family’s lifestyle, was no longer tenable. They purchased a plot of land with planning permission for gypsy use, where they lived 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 defendants and their family were the only pre-existing gypsy family left on the site. They were unable to find an alternative suitable plot in the area, so they purchased and moved onto a nearby site that did not have planning permission for gypsy use. When the applicant 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 defendants and the dependants who lived with them 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 the means of landscaping. However, she considered 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 that 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 applicants challenged the validity of the decision to grant permission by an application under section 288 of the Town and Country Planning Act 1990. They submitted, inter alia, that the burden was on those seeking planning permission to show that they had taken all reasonable steps to find a suitable alternative site.
Held: The application was dismissed.
There were no grounds to question the validity of the inspector’s decision since her approach to the burden of proof was not flawed.
Section 38(6) of the 2004 Act required the inspector to conduct a balancing exercise. The first step was to determine whether any material considerations might suggest that the development should be allowed even though it conflicted with the provisions of the development plan. If there was evidence of one or more such material considerations, the inspector had to decide whether those considerations outweighed the provisions of the development plan and the harm that would be caused should the development go ahead.
There was no basis for saying that, if one of those material considerations was that no suitable alternative site was available, it was for the party seeking planning permission to prove such non-availability. As with any other material consideration, the question was whether the evidence that the parties had chosen to call revealed the existence or otherwise of another site that would meet the needs of the applicant for planning permission.
Saira Kabir Sheikh (instructed by Sharpe Pritchard) appeared for the applicants; James Strachan (instructed by the Treasury Solicitor) appeared for the first defendant; Marc Willers (instructed by Gross & Co, of St Bury Edmunds) appeared for the second and third defendants
Eileen O’Grady, barrister
