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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Allen v Secretary of State for Communities and Local Government & Anor [2015] EWHC 2463 (Admin) (19 August 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2463.html Cite as: [2015] EWHC 2463 (Admin) |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| Thomas Allen |
Claimant |
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| - and - |
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| Secretary of State for Communities and Local Government -and- Bedford Borough Council |
First Defendant Second Defendant |
____________________
Stephen Whale (instructed by Treasury Solicitors) for the First Defendant
Hearing dates: 9th July 2015
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Crown Copyright ©
Mr Justice Gilbart:
i) History
ii) The issues at the inquiry
iii) The Inspector's report and recommendations
iv) The Decision Letter
v) A letter from Bedford Borough Council sent to the Court
vi) The case for the Claimant
vii) The case for the Defendant SSCLG
viii) Discussion and Conclusions
ix) Order.
History
"there was a high level of objections at both the application and appeal stage and this, together with both the specific planning history and controversy around the appeal site leads the Secretary of State to conclude that, in the specific circumstances identified, it is appropriate that the appeal is recovered for his own determination. The appeal is therefore being recovered because of the particular circumstances."
The issues at the inquiry
" 189. In the light of all of the evidence and submissions before me, including those made in writing, the main issues in this case appear to me to be as follows:
(i) whether the continued use of the appeal site would accord with the relevant development plan policies, and whether the latter are consistent with national policy;(ii) whether the continuation of the use would be acceptable having regard to the site's accessibility to local facilities;(iii) whether the continuation of the use would cause any significant harm in any other respect;(iv) whether the continued use of the appeal site is necessary to meet a general need for traveller sites in the locality, either because of problem with the Council's proposed site at Meadow Lane, or for any other reason(v) whether the use of the appeal site should be allowed to continue because of the personal circumstances and needs of the site's occupiers."
The Inspector's report and recommendations
"85. The possible problems at the ML site with regard to noise, surface water drainage and flooding are recognised, and the development has been carefully designed to overcome these issues. The potential for odours arising from nearby land uses has also been fully taken into account. Technical studies have been carried out into these matters and put before the inquiry53. In the light of all this evidence, the Council considers that the ML gypsy and traveller site will offer a satisfactory living environment for future residents."
[86- 91]
The Council's submissions on the Meadow lane site
92. With regard to odour issues, although the ML site is close to Bedford's main sewage works, the Council points to the fact that the operator, Anglian Water (AW), is currently carrying out a £20m programme of upgrading and improvements. These include the decommissioning of the most odorous processes, including the sludge drying tanks, sludge pads and anaerobic digesters, and their replacement with more modern equipment, which will also be-largely enclosed. This work is likely to result in a considerable improvement in the odour environment. The dispersion modelling carried out for AW predicts a 98 t percentile value at the ML site of less than 1.5 oue/m3 (European Odour Units). This would meet the Environment Agency's (EA's) guidance for even the most offensive odour types, which is the most stringent standard available.
93. Furthermore, if the sewage works were judged to cause a nuisance to residential occupiers, the Council considers that there is still scope for further measures beyond the works currently in hand. If necessary, AW could be compelled to take such further action; additional works would be expensive but not prohibitively so. AW is evidently aware of the risks in this regard, and chose not to object to the proposals for the ML site. In the Council's view, this indicates that AW is confident that its current improvement programme will be sufficient.
94. The Council accepts that the odour level on part of the access route along Meadow Lane itself would exceed 1.5 oue/m3. However, this would be a transitory experience, for which there are no applicable standards. And in any event, the level would still be below 3 oue/m3 for 98% of the time.
95. The adjoining abattoir is regulated by the EA. The terms of its environmental permit require the operator to use the best available technology to prevent or control odours, in a number of specified ways. An odour management plan has been agreed with the EA. In the Council's view, this gives a reasonable amount of confidence that odours from this source will not be unacceptable. Overall, the Council considers that the risk of occupiers at the ML site being exposed to unacceptable odours, from any source, is low.
96. Turning to noise, the Council accepts that the ML site suffers from noise from the A421. However, Condition 13 of the existing planning permission secures the provision of an acoustic barrier. Details have subsequently been approved, which provide for a solid fence, in a position close to the road carriageway. In this position the fence would be well away from the proposed caravan pitches, and in the Council's view, would not adversely affect living conditions at the site.
97. The proposed acoustic fence is calculated to bring the external noise levels down to around 58-60 dB (LAeql6hr) in the daytime, and 50-55 dB (LAeq16hr) at night. This would be slightly above the recommendations of the World Health Organisation (WHO) and BS8233, which suggest an upper limit for gardens of 55 dB. However, in the Council's opinion, such levels are common in much modern residential development, and should therefore not be seen as unacceptable. Inside the caravans, the internal night-time levels with windows closed and trickle vents open are predicted to be 32-37 dB. In the day-rooms, the daytime level would be below 40 dB. These levels broadly accord with the WHO and BS standards. The Council therefore regards the site as capable of providing acceptable acoustic conditions for future occupiers.
98. With regard to flood risk, the Council accepts that some small parts of the ML site are within flood zones 2 and 3, but the proposed caravan pitches would be clear of those areas. Where necessary, the remaining land, including parts of the access route and internal roadway, would be raised to a minimum level of 23.5m, to make the development safe for occupation. This would exceed the level recommended by the Bedfordshire and River Ivel Internal Drainage Board (the 1DB) by some 380mm, providing a more than adequate safety margin. Compensatory flood water storage would be provided within the site, with a capacity calculated to exceed the volume lost, so as to ensure that no flood water would be displaced off-site. The scheme has been designed in the light of detailed flood mapping carried out by the EA and the 1DB. These authorities are happy with the proposals.
99. Foul drainage from the site would be piped under the A421 to the existing main sewer on the far side, and surface water drainage would be discharged to an existing highway ditch 67. Two small pumping stations would be needed, and holding tanks would also be installed at ground level to attenuate the flows to these systems. However, these would not significantly affect the site's capacity with regard to flood water, because they would not be within the areas that are liable to flooding. In engineering terms, the Council sees all of these works as relatively straightforward.
100. Whilst the agreement of the Highways Agency (HA) is needed for the acoustic fencing and some of the drainage works, within the boundary of the A421, detailed discussions have taken place, and the Agency is content for work to start in advance of a formal agreement under the Highways Act68. Some details are still being finalised, but the Council is confident that a range of acceptable solutions are available69. In the Council's view, all of these ancillary works are either covered by the existing planning permission, or fall within permitted development, and most of the pre-development conditions on the permission have now been discharged 70. The Council anticipates that the ML works will be started before the end of February 2014, and completed by early 2015."
"Issue (iv): general need for traveller sites in the area Current and future needs based on the 2012 GTAA[1]
235. At its base date in 2012, the GTAA showed an existing shortfall of around 14 pitches (46-48]. Since then, 6 additional pitches have been provided in the extension to the KH site [51]. But over the same period, the demand was calculated to grow at a rate of about 0.4 pitches per year [46], so by now (February 2014) this will have added about one more pitch to the need. Based on the GTAA as it stands therefore, there appears to be a current unmet need, for about 9 pitches.
236. Beyond the year 2017, the rate of growth is expected to rise to about 0.8 pitches per annum (46]. Adding together the increase during the three-year period 2014-17, at 0.4 pitches a year, plus the two years 2017-19 at 0.8 a year, produces a requirement over the next five years for a further 2.8 pitches. Rounding that figure up to 3, and adding the existing shortfall of 9, results in an overall need for about 12 new pitches in total by the end of the five-year period.
237. The Council's proposed development at Meadow Lane will provide 14 new pitches (52]. Numerically, this is more than sufficient to meet the District's requirement, for the 5-year period, providing it is completed within that time. In the meantime however, the immediate need for 9 pitches remains.
238.
239. On this basis, I conclude that there is a current unmet need for 9 pitches.
The appellant's criticisms of the GTAA methodology
240. The appellant, through the evidence of his planning witness, Mr Brown, has gone to considerable lengths to present a detailed critique of the methodology used in the GTAA (130-133]. However, the GTAA was subject to scrutiny at the public examination into the ADLP, only a few months before the opening of the present inquiry, and even now the Inspector's report on that examination is still less than a year old. The GTAA was found to be comprehensive, up-to-date and robust, and the Inspector concluded that, provided the Council's plans for KH and ML came to fruition, sufficient provision could be made for needs up to 2021 [50].
241.
242. In a plan-led system, it seems to me that the development plan process is the proper vehicle through which the testing such of such documents should take place in the first instance. This is so that repeated debate on similar matters can be avoided, and so that all parties can rely on the Inspector's resultant findings. In the present case, the appellant, by his own admission, could have pursued his criticisms of the GTAA at the examination, but chose not to do so. As a result, I give relatively little weight to those criticisms now.
243. .
244. .
245. ..The GTAA is the only actual evidence as to the level of need that is before me.
246. I also note the appellant's reference to the DCLG Guidance on GTAAs. But that document is, as the title suggests, for guidance rather than a set of mandatory rules. For the reasons that I have outlined, I am satisfied that the Council has used its best endeavours to calculate the need for pitches, and that in doing so it has paid appropriate regard to the Guidance, taking account of the local circumstances.
247. I therefore find no reason to doubt that the 2012 GTAA represents a reasonable estimate of the level of need for gypsy and traveller pitches in the Bedford area.
Reliance on Meadow Lane
248. On my visit to the Meadow Lane site, it was apparent that this is a very challenging site on which to create an acceptable residential environment. The site is some way outside the Bedford urban area, and does not adjoin or relate in any way to any other settlement. Meadow Lane itself is a cul-de-sac off the A603 (the Cambridge Road), which currently serves only the sewage works, the abattoir, Bedford Town Football Club, and the existing travellers' emergency stopping place, which is currently closed. The land on which the Council proposes to provide the new permanent travellers site is mainly between the ESP, the abattoir, and the A421 dual carriageway.
249. The proposed ML travellers' site is therefore isolated from any existing residential community, and in an area with a predominantly commercial and industrial character, and a poor visual environment. As such, I find myself in agreement with the appellant [144] that this is not an inviting location for residential occupation. Although the ADLP contains ambitious proposals for a new Bedford River Valley Park in this vicinity, this appears to be still in the early planning stages. On the evidence before me, I cannot tell how likely it is that this scheme will improve the surroundings to such an extent as to change the way the ML site is perceived.
250. Within the ML site itself, a number of the problems that the Council faces in developing the site were apparent. The noise from the A421 was highly disturbing, even in the furthest part of the site from the road, where the new pitches would be sited. A distinct odour was noticeable in that part of the site, and all along the southern boundary, where the access road would come in. Large parts of the site were under standing water. And, as the appellant points out, those who attended the site visit were required to wash their footwear at the exit point, to prevent the spread of the New Zealand Pygmyweed [145]. Although mitigation measures are proposed for some of these problems, the evidence before me still raises significant doubts as to the quality of the residential environment that can be achieved.
251. With regard to the traffic noise, the Council's witness Mr Patrick Allen acknowledged that, even with the proposed acoustic barrier fencing, the best external level that can be achieved within the new pitches, immediately around the caravans and dayrooms, is likely to be 58-60 dB [97]. This is significantly above both the 'desirable' and 'upper limit' levels in BS8233, and those described by the WHO as giving rise to 'moderate' and 'serious' annoyance in outdoor living areas [97, 140]. Neither the BS nor the WHO standards form part of national or development plan policy, but they are nonetheless widely recognised, and are thus deserving of some weight. I also note that, although the predicted level of 58-60 dB was apparently based on a fence height of 2.5m, and Mr Allen's evidence suggests that this might in fact need to be as high as 2.8m, yet Mr Pollard gave evidence that the relevant planning condition had now been discharged based on a lower height of 2.3m. If the latter is correct, it seems to me that there may be some uncertainty as to whether even the predicted 58-60 dB will actually be achieved. Be this as it may, there seems little doubt that the noise environment on the ML site will not be ideal.
252. Turning next to the issue of odour, it appears that the improvements to the sewage works are still on-going, and I have no reason to doubt that these will bring the further reductions in odour that are predicted in Anglian Water's dispersion modelling (92]. It therefore seems likely that when the upgrading is completed, the odour levels from that source reaching the proposed new pitches will be within acceptable levels. The odour level experienced on the access route is likely to be on the margins of acceptability (94, 139], and I accept that this will detract from the quality of life to some degree, but on balance this alone does not make the ML site unacceptable. However, odours from the abattoir have not been measured [139]. Although some controls are in place through the EA [95], there is no clear evidence as to whether the Odour Management plan takes account of the proposed traveller site, nor whether the 'best available technology' that can be required would be sufficient in this case. The abattoir site is to the south-west of the area where the new pitches are to be laid out, and the occupants will therefore be directly in line with the prevailing wind direction. It is not disputed that the lairage, which is on the boundary, is especially likely to be an odour source (139]. In the absence of any evidence to the contrary, there appears an obvious risk that the residents of the ML site will sometimes be subjected to unpleasant smells from the abattoir. The evidence before this inquiry does not fully dispel that perception.
253. On the question of surface water drainage and flooding, the proposed adjustments to site levels have been approved by the IDB[2] and EA[3], and I see no reason to doubt that these will be successful in protecting the new pitches and access roads from flooding, and in accommodating the necessary volume of compensatory storage [98, 99]. However, the Council's witness Mr Parker accepted that, across the remainder of the site, these proposed works will not prevent the waterlogging and standing water that occurs now, and that this could mean having to erect secure fencing to prevent any access into the affected areas... (141]. The evidence before me does not show the extent of those affected areas. However, at the time of my visit, the ponding was very widespread, and it seems likely that when part of the site is developed, as proposed, the water that previously would have collected in that area will be shed onto the remainder of the site. This may be exacerbated by the storage tanks and pumping stations, for which no allowance has been made. It therefore seems probable that, after development, the seasonal flooding will spread further, to cover much of the undeveloped residue of the site, between the new pitches and the A421 and the ESP[4]. I appreciate the need to prevent access to that area for reasons of safety, but I share the appellant's view as to the effect of fencing off such a potentially large area of the site. In effect, this seems likely to mean that the traveller site will be hemmed in by fencing, increasing its isolation and resulting in a somewhat oppressive sense of enclosure.
254. Given the likely lack of any access into the residual areas of the site, there is unlikely to be a need to take precautions in respect of the Pygmyweed (145]. Although it is somewhat surprising that no information about this issue was made available until a very late stage in the inquiry, the method statement belatedly provided by the Council does appear to show that measures can be taken to clear the weed from the area to be developed. But this does not relieve my concerns about the other matters discussed above.
255. In the face of all these issues, relating to noise, odour, surface water drainage, plus the site's location and the nature of the surroundings, it seems to me that many of the appellant's arguments regarding the ML site are not without substance. However, planning permission for that development exists, and a legal obligation has been entered into for its delivery by February 2015. The question as to whether those decisions were right is not for me to judge. And although some practical problems remain to be resolved, it seems more than likely that the scheme will be brought to completion, probably within the period required by the obligation. In any event, it seems clear that the carrying out of these works will not be affected by the outcome of the present appeal.
256. Nevertheless, the question remains as to whether the ML development, when completed, is likely to provide acceptable living conditions for its future occupiers. If not, it would be wrong in my view to rely on it as the only solution to Bedford's unmet needs. Looking at the various locational and environmental matters discussed above, it seems to me that whilst all of these may be problematic in their own right, individually none can categorically be said to be so severe as to rule out residential occupation altogether. For this reason, I am not convinced that it would be justifiable at this stage to completely discount the site from making any contribution to the district's future supply. But cumulatively, I agree that the ML site's multiple drawbacks might well be enough to make it unpalatable or unacceptable to many potential occupiers. If so, the site's contribution could be significantly reduced, or even negated. Whether this proves to be so, is likely to become more apparent within the first year or so after the site opens.
Conclusion on local need
257. As set out above, there is an existing shortfall of 9 pitches against the district's current need, and a 5-year requirement for a further 3, making an overall need for 12 new pitches. The whole of that requirement is likely to be met within a year or so, by the development of 14 new pitches at ML. If that site proves satisfactory, there will not be a need for the appeal site as well, to meet the district's quantitative requirements. But the ML site has some serious environmental issues, and it is not unreasonable to question whether living conditions at the finished development will be acceptable. Consequently, whether the ML development will provide a satisfactory answer to the area's needs is a matter that will best be judged after it has opened, rather than now.
"Issue (v): Personal circumstances
Mr & Mrs Allen
258. The appeal site has been Thomas and Natalie Allen's home since 2008 [149]. Although it has never had permission for permanent use, there is no dispute that the site is the family's only home [150], and as such, their rights in respect of it are protected under Article 8 of the ECHR. Whilst the site is not in a preferred location in terms of planning policy, and most local facilities are some distance away, the family is still able to reach those that it wants to, and is registered with a doctor in Sharnbrook (149]. Most importantly, the site provides a settled base, which is likely to contribute to family stability, and therefore to the welfare of the three children. Allowing the site to become the family's permanent home would therefore help to meet some of the aims of the PPTS.
259. Furthermore, the two older children are of school age, and the third is approaching that age soon. Although they have not attended school so far, there seems to be some prospect that they may do so if the family stays at the appeal site [149]. Attendance would give the children the chance of a decent education, more opportunities to socialise and integrate, and a better start in life generally. The children's best interests must be a primary consideration.
260. If the family has to leave Bletsoe, there is no guarantee that they will find an alternative site in the area. The current shortfall of pitches identified in the GTAA is likely to make this more difficult. Although the ML site will provide additional capacity in the future, Mr Allen's concerns about that site appear to have some foundation, and I agree that it would not be right for a family with children to be left with that as their only option, at least until the development can be shown to provide an acceptable environment.
261. I share many of the Council's reservations. There is no doubt that Mr and Mrs Allen have contributed to their own situation: first by giving up the pitch that Mr Allen originally had on his father's site (148]; and then by moving onto the appeal site without planning permission; and also by failing to make any alternative provision, despite knowing that their temporary permission was due to expire in 2012. Mr Allen himself acknowledges that he has not looked for any other sites, and has declined the opportunity to apply for a pitch on a Council site 179. However, my recommendation must be based on the situation that exists now.
262. I also agree that there seems no reason why the family could not now be re-accommodated at Irthlingborough, as and when a pitch becomes available. Despite Mr Allen's references to past disagreements with his father (148], there is no suggestion that these were of a permanent nature. It is difficult to imagine that a pitch would not be offered if it were needed; or that such an offer would be refused. Alternatively, I see no reason to doubt that the Council would try to find a pitch at KH, and would give the Aliens some priority there because of their children (104]. I accept that this is not what Mr Allen would prefer, but on my visit to KH I saw nothing to suggest that it is not a suitable site on which to bring up a family. The facilities for keeping horses there are minimal, but there is nothing to stop Mr Allen from continuing to keep his horses at the Bletsoe site and his other grazing land as he does now. One way or another, it seems very unlikely that the family would have to resort to living on the roadside. However, remembering that children are involved, even a small risk in this respect is to be avoided if possible.
263. I note that Mr Allen and his father have invested a considerable amount of money in works carried out at the appeal site [150], but the 2009 appeal decision made it clear that the granting of a temporary permission did not mean that permanent consent would follow. Not all works have been carried out in compliance with conditions.
264. Overall, whilst the AlIens' circumstances are not necessarily compelling, if they were unable to continue living at the appeal site there would be some uncertainty as to their future, which would carry the risk of adverse impacts on the family unit, and in particular would not be in the best interests of the children. I therefore give these matters significant weight.
Michael Moss and Michelle Stevens
265. Although there is some uncertainty as to how long Mr Moss and Ms Stevens have been in occupation of their rented pitch at the appeal site, and whether they have occupied it continuously, there is no dispute that they were living there at least during the latter stages of the inquiry and at its close (105/151]. From Mr Moss's evidence, I see no reason to doubt that they have no other home. To that extent, a decision that forced them to move would make them homeless, and would be an interference with their rights under the ECHR.
266. However, their situation is somewhat less clear-cut than this, because from Mr Moss's evidence, it is clear that his and Ms Stevens' intention is to use the appeal site mainly as a winter base, and to travel elsewhere for up to eight months of the year (151-152]. Although they would wish to return to Bletsoe for the winters, and possibly also for short periods in between, and although they might leave one of their caravans at the site while they are away, under the terms of their arrangement with Mr Allen, Mr Moss acknowledges that those plans will always depend on whether any of the three rented pitches are vacant181. Whilst Mr Allen would apparently be happy to offer Mr Moss and Ms Stevens a pitch again if one is available, he would not expect one of his other tenants to give up a pitch for them. On Mr Moss's own evidence therefore, it appears that he and Ms Stevens have made up their minds voluntarily to give up their occupation of the site, without any guarantee of being able to return. Indeed, by the time any decision is made on the present appeal, they may have already done so.
267. But be that as it may, Mr Moss and Ms Stevens evidently wish to pursue an itinerant lifestyle, and yet also to have a settled base to return to. These aims may be difficult to reconcile on some sites, but the appeal site has evidently served their needs in this respect. Its closure would restrict their opportunities in the Bedford area. Mr Moss would be equally happy with the Irthlingborough site, and would go back there if necessary [151]. But, as he found in 2013, there is no certainty of finding a pitch there when he and Ms Stevens want one. The couple's lifestyle makes it likely that they will need to resort to a variety of different sites at different times anyway, but as far as Bedford is concerned, until the shortfall of supply is made up, the prospects are likely to be difficult. And, as a couple without children, at least at present, Mr Moss and Ms Stevens are likely to have relatively low priority on Council sites.
268. I therefore conclude that, at the present time, the loss of the appeal site would adversely affect Mr Moss and Ms Stevens' prospects of finding accommodation, and particularly of a type which would facilitate their travelling lifestyle, contrary to the aims of the PPTS. Whilst again their circumstances are not overriding, I give them some weight nonetheless.
Jim Draper and Wonny Jones
269. There is no explanation for the fact that Mr Draper says that he and Ms Jones have been living at the appeal site for two years (153], and yet no mention of them was made in the original application, or in the original proofs of evidence, or the Witness statements submitted in July, September or November 2013 (101, 106, 153]. Mr Draper's own evidence was only submitted on the last full day of the inquiry. As a result, the Council had little or no opportunity to verify any matters arising from it. In my view, this repeated lack of disclosure, and the apparent contradictions with other information provided previously, casts doubt as to how much weight can be given to Mr Draper's evidence, particularly as to the length of his and Ms Jones' occupation of the site.
270. Nonetheless, it appears that Mr Draper and Ms Jones are living at the site now, and I have no reason to doubt that they regard the appeal site as their home, and have no other. For the purposes of the ECHR, a refusal of permission would therefore represent an interference with their rights. However, that is to be balanced against the fact that when they first came to the site, even if that was two years ago, it was already close to the end of its temporary planning permission.
271. If the Bletsoe site were no longer able to be used, Mr Draper and Ms Jones would have to compete for the limited supply of pitches in the area, and like Mr Moss and his partner, they would be unlikely to receive any particular priority. As long as the shortfall against the GTAA requirement persists, conditions would doubtless be difficult for them in the Bedford area. I therefore give some weight to the effects on them.
Steven and Sharon Smith
272. I therefore draw no conclusions from the limited evidence before me regarding the effects on these putative occupiers.
Other intermittent or occasional occupiers
273. A large number of other persons were identified during the inquiry who were said to have occupied pitches at the appeal site, either during the inquiry itself or previously (155]. Some of those persons are said to be regular visitors to the appeal site, and a number are expected to return at some time. However, none was resident there at the close of the inquiry, and it was accepted by the appellant that no reliance should be placed on their individual needs or on the effects on any of them.
274. Despite some inconsistencies about dates, I see no reason to doubt that the persons named do exist, and have spent some time at the appeal site. To that extent, it seems to me that the site has probably served a valuable purpose in meeting their needs. However, this is in effect just a manifestation of the scale of the general need which is already shown in the GTAA. To give weight to the needs of any of these absent persons as individuals would therefore be a form of double counting. I therefore give this consideration no further weight.
Other considerations relating to personal circumstances
275. Apart from Mr and Mrs Allen and Mr Moss, there is no evidence that any of the present or former occupiers have gypsy status within the definition in the PPTS (108]. However, this does not affect the weight that I have given to their housing needs or other personal circumstances, as set out above.
276.
"Conclusions and recommendations
Conclusions regarding compliance with the development plan
280. The appeal site's location in the countryside and the RPA[5] means that its continued use as a gypsy caravan site would conflict with the CS[6]'s countryside protection policies, CP 13 and CP14 [197]. For the same reasons, the proposal conflicts in principle with the sequential approach to planning for gypsy and traveller sites embodied in Policy CP9 (30].
281. In addition, the site's poor accessibility to most kinds of day-to-day facilities,and lack of sustainable transport options, conflicts with the locational aims of CP9's criterion (v), and those of the general development policies CP2 (vii) and BE30 (v) [215].
282. Although Policy C139 envisages circumstances in which the sequential approach may be outweighed by a need for sites and lack of alternatives, (and notwithstanding my findings with regard to those issues in the present case), nevertheless the policy still requires all sites to be judged against the stated criteria (30]. For the reason explained above, the appeal site does not meet Policy CP9's requirements in this respect.
283. The appeal proposal is therefore contrary to the relevant policies of the development plan.
Conclusions with regard to other material considerations
284. Based on the GTAA, there is currently an unmet general need in the district for
about 9 additional gypsy and traveller pitches [235]. Although the Meadow Lane development will more than make good this shortfall, it is not due to be ready until the end of February 2015 (53, 2541. There is therefore a need for up to 9 pitches in the meantime, at least on a temporary basis. This need, even if only temporary, is an important consideration.
285. Although that figure is in one sense a theoretical one, being based on the GTAA calculations, it is also backed up to some extent by the evidence relating to the personal needs of the appeal site's occupiers. At least three of the households currently on the site (the Allen family, Mr Moss/Ms Stevens, and Mr Draper/Ms Jones) have demonstrated that they have accommodation needs of one sort or another, which are due some weight [263, 267, 270]. Of these, the greatest weight is that relating to the needs of the Allens, because their household includes children.
286. Although there seems to be a chance that some vacancies will arise at Kempston Hardwick [261], there is no guarantee that all three of these households will be able to be accommodated there, especially given the level of unmet need in the area. And even if they were, in a situation of unmet general need, this would be likely to be at the expense of other local travellers, whose needs would then have to go unmet. For these reasons, it seems to me that consideration should be given to a temporary planning permission.
287. As to the duration of any such temporary period, when the ML site becomes available, in quantitative terms it will meet the district's general needs, not just for the present, but up to at least 2019 (236-237]. When that happens, there should be no reason why the personal needs of the appeal site's occupiers cannot also be met, at least numerically. However, it is not yet known whether the ML site's environmental problems can be overcome, so as to provide satisfactory living conditions [255 - 2561. If not, that would undermine any reliance on the site. In my view, it would be premature to form a judgement on this before the site has been open for at least a year.
The planning balance
288. The planning merits can therefore be summarised as follows. On the one hand, the appeal site is in an unsustainable location, where the occupants would be reliant on the car for all day-to-day needs; and where the continued use of the site would conflict with the development plan's policies for protecting the countryside and for promoting sustainable growth patterns. Although the harm arising from these policy conflicts would be of a somewhat intangible nature, the policies in question are important ones. Consequently, in my view, the conflict with them carries considerable weight. In the absence of any need argument, these matters would justify a refusal of planning permission.
289. But as of now, there is an unmet need for sites, at least up to February 2015; and after that, there is uncertainty as to the adequacy of the future supply, due to the potential shortcomings of the ML site. Whilst the Council is to be commended for having taken decisive action to get a substantial number of traveller pitches delivered, it seems unfortunate that its choice of site should be one that raises so many questions as to its suitability. As a result, it seems to me that it would be unwise, and indeed unfair on the travelling community, to rely on the ML site in advance of being able to judge the finished result. And alongside these considerations, there are the personal needs of the site's occupiers, whose particular circumstances serve to illustrate the reality behind the figures. Together, these general and personal needs carry sufficient weight to justify granting a further temporary permission, despite the strong policy objections, while the supply situation remains unresolved.
290. The balance of these considerations therefore points towards granting a further temporary permission, and in my view that permission should be for a period of two years. This would allow sufficient time for the ML development to be completed, and for the site to operate for between a year to 18 months, before any further decision needs to be taken regarding the present appeal site. If after that time, living conditions at ML are judged acceptable, the needs established in the GTAA will have been met. If not, the Council's failure to make proper provision is likely to be an important consideration in any future applications.
291. I appreciate that granting successive temporary permissions on the same site has disadvantages for all of those involved, but in the circumstances of this particular case, it seems to me that no other outcome would, be fully justified at the present time.
Human rights and equality considerations
292. A decision to grant a further temporary planning permission would not require any of the present occupiers to move. Although they would not then have a permanent permission, they would be in no worse position than now. Such a decision would therefore not represent an interference with their rights under Article 8 of the ECHR, to respect for their private and family life and for their home.
293. But even if I were found to be wrong on that point, and the failure to grant a permanent permission were held to be an interference with the occupiers' Article 8 rights, such an action would be within the law. The interference would also be necessary, in a democratic society, in order to protect the rights and freedoms of the local community, as expressed through the elected Council, to pursue planning policies for the common good, including policies for the regulation of the use of land, and for the protection of the countryside.
294. In the present case, in the light of the relevant policies and my assessment of the proposed development, I can see no other course of action that would cause less interference to the interests of the occupiers, whilst also protecting the rights of the community, apart from the one that I now recommend, of restricting any new planning permission to a temporary period. That course of action is the minimum necessary to safeguard the aims of the relevant planning policies, and would therefore be a proportionate response.
295. The best interests of the children involved are a primary consideration. In the present case, it seems to me that the most important requirement for the Allen children is that the family has a settled home, and that the children are able to attend school. However, since they have not yet started at school, and Bletsoe is not well placed for access to schools, the appeal site holds no special advantage in that respect. Granting a further temporary planning permission for two years would allow the family to remain at their current home for now, and would ensure that they would not be forced to move before additional pitches become available to serve the area. The two year period would also allow sufficient time for a proper assessment of the quality of the new accommodation at ML, and for the family to make an informed choice between that site, or the other options which may be available to them. Granting temporary permission would therefore allow the children's best interests to be accommodated.
296. Some of the appeal site's current occupiers are self-identified as Romany Gypsies (148, 151], which is a protected characteristic under the Equality Act 2010. However, as I have noted elsewhere in this report, the planning policies which weigh against a grant of permanent planning permission in this case would apply equally to any applicant, and Policy CP9 allows some gypsy and traveller developments to be considered more favourably than other types of housing in the countryside [206]. My recommendation also takes account of the personal circumstances of all the relevant occupiers, irrespective of their ethnic status. Granting a temporary permission in these circumstances would not lead to a discriminatory outcome.
297. In all the circumstances, the grant of temporary permission for a further two years would safeguard the rights of all those involved, and protect the best interests of the children, and would pay proper regard to the relevant legal duty in respect of equality.
Conditions
(It is unnecessary to set out these paragraphs)
Overall conclusion and recommendation
304. Although the continued use of the land would be contrary to development plan policies, there is for the time being an unmet need for more gypsy and traveller pitches in Bedford, and also some uncertainty as to whether the Council's planned provision will properly meet that need. These considerations, together with the personal circumstances of the site's current occupiers, weighs in favour of granting a further temporary planning permission.
305. I recommend that the appeal be allowed, and permission be granted for two years, subject to the conditions set out in the attached Annex 3"
The Decision Letter
I. Compliance with the development plan and consistency between local and national policies
15. The Secretary of State agrees with the Inspector that the development plan policies most relevant to development in the countryside include Core Strategy policies CPI3 and CPI4 which generally seek to protect the countryside and Rural Policy Area from most forms of development. He agrees with the Inspector that there is no inconsistency between Policies CPI3 and CPI4 and relevant national policies in the Framework and PPTS. He agrees with the Inspector for the reasons given that the proposal involves a clear conflict with Core Strategy policies CPI3 and CPI4 and agrees that both policies should be given the full weight due to them as part of the development plan.
16. The Secretary of State agrees with the Inspector that the development plan policies most relevant to accessibility and sustainability are LP policy BE30 (v), Core Strategy policy CP2 (vii) which require consideration of, amongst other things, the extent to which proposed developments can be accessed by public transport, cycling and walking and CP9 criterion (v) which relates these concerns specifically to gypsy and traveller developments. He agrees with the Inspector for the reasons given that the relevant provisions of BE30, CP2 and CP9, relating to accessibility are up-to-date and consistent with national policy (1R202).
17. The Secretary of State agrees with the Inspector that the development plan policy most relevant to gypsy and traveller sites is Core Strategy policy CP9 which sets out a list of criteria for gypsy and traveller sites. He agrees with the Inspector that there is nothing in the PPTS to suggest that need is not a relevant consideration (1R205). He further agrees with the Inspector for the reasons given that there is no reason to give anything less than full weight to policy CP9.
18. The Secretary of State agrees with the Inspector that the other development plan policies most relevant to the proposal are LP policies BE30 (criteria i, ix and x), Core Strategy policy CP2 (iv and v) and CP9 (iii and iv) covering matters relating to the effects on the landscape, local distinctiveness and character, neighbouring occupiers, local communities, built heritage and village settings.
II. Site accessibility to local facilities
19. The Secretary of State agrees with the Inspector that gypsy and traveller families need convenient access to schools, doctors, shops and leisure facilities and good planning requires that where possible such developments should be located so that sustainable transport choices are available. He agrees with the Inspector that Core Strategy policy CP9 (criterion v) continues to have force; and that the general policies LP policy BE30 (v) and Core Strategy Policy CP2 (vii) also apply equally to gypsy and traveller sites. He agrees with the Inspector for the reasons given (1R215), and finds that the appeal site performs very poorly against these policy aims for sustainable transport and accessibility. The continuation of the site's use as a gypsy and traveller site would therefore involve a significant conflict with these policies. The Secretary of State notes that in the 2009 appeal decision, the Inspector concluded that the limitations of the location in terms of sustainability weighed heavily against granting permanent permission. He agrees with the Inspector (1R216) that the finding in the 2009 appeal decision is an important consideration in the present appeal and that the site is no more sustainable now than it was in 2009. The Secretary of State agrees with the Inspector that the site's shortcomings, in respect of the accessibility by sustainable modes of transport, continue to weigh heavily against any continuation of the use as a gypsy and traveller site (1R218).
III. Other alleged impacts
20. Concerning the effects on the character and appearance of the area and the landscape and the setting of the Conservation area .. The Secretary of State agrees with the Inspector's conclusion (1R225) that any significant adverse effects on the character and appearance of the area, including the Conservation Area, its setting and the landscape, would not be so significant as to justify refusal of permission and there is no conflict with Core Strategy policy CP9 (iii), LP policy BE30 (i and x) and Core Strategy policy CP2 (iv and v).
21. ..The Secretary of State agrees with the Inspector's finding on this issue that the continuation of the use of the land for 4 traveller pitches would not in itself be likely to cause any material harm to neighbouring occupiers or to the local community, and in this respect, there would be no conflict with Core Strategy policy CP9's criteria (iv) or (vi) nor with LP policy BE30 (ix) (IR230).
22. Concerning the effects on highway safety .. He agrees with the Inspector (1R231) that although the traffic on the A6 is fairly heavy for the standard of the road, the alignment is reasonably straight and level and visibility good. He notes that there is no evidence of any significant accident record. Like the Inspector (1R233) he finds no conflict with Core Strategy policy CP9 (ii) or LP policy BE30 (iv or vi).
23. Concerning other impacts, He agrees with the Inspector for the reasons given (IR 234) that these representations should carry only modest weight.
24. Overall, the Secretary of State agrees with the Inspector that the appeal proposal is contrary to the relevant policies of the development plan and the conflict with them carries considerable weight.
IV. General needs for traveller sites in the area
25. Based on the GTAA, the Secretary of State agrees with the Inspector (lR237) that there is a current unmet need for 9 pitches and that this is an important consideration. He agrees with the Inspector that beyond the year 2017, the rate of growth is expected to rise to about 0.8 pitches per annum and that adding together the increase during the three year period 2014-2017, plus the two years 2017-2019 produces a requirement for a further 2.8 pitches and rounding that figure up to 3 and adding the existing shortfall results in overall need for about 12 new pitches in total by the end of the five-year period. He notes that the Council's proposed development at Meadow Lane, which has planning permission and is expected to be delivered by February 2015, will provide 14 new pitches, which is more than sufficient to meet the District's requirement for the 5-year period (1R236). The Secretary of State has considered the appellant's criticisms of the methodology used in the GTAA. He notes the GTAA was subject to scrutiny at the public examination into the Allocations and Designations Local Plan 2013, which was only a few months before the opening of the inquiry, and it was found to be comprehensive, up-to-date and robust with the Inspector concluding that providing the Council's plans for Kempston Hardwick and Meadow Lane came to fruition, sufficient provision could be made for needs up to 2021 (IR240). The Secretary of State agrees with the Inspector for the reasons given that the GTAA represents a reasonable estimate of the level of need for gypsy and traveller pitches in the Bedford area (IR247).
26. The Secretary of State notes the Inspector's remarks concerning the Meadow Lane site at IR248-256. He further notes that planning permission for the development exists and a legal obligation has been entered into for its delivery by February 2015 (1R255). Whilst the Secretary of State has very carefully considered the Inspector's remarks concerning noise, odour, surface water drainage, and the site's location and the nature of the surroundings (IR256) he concludes that planning permission has been granted for the Meadow Lane site (when these issues would have been considered), and it is the Council's responsibility to deliver acceptable living conditions for future occupiers. He notes the Council's commitments to deliver acceptable living conditions for future occupiers (1R92-100) and sees no reason why the Council will not meet its responsibilities.
V. Personal circumstances
27. The Secretary of State has given very careful consideration to both the evidence submitted and the Inspector's remarks in respect of personal circumstances at IR258- IR276.
28. He notes that the appeal site has been the settled home of the appellant, his wife Natalie, and their three children, whose ages range from 3 to 10 years, since 2008. He has given significant weight to the personal circumstances of the family. The Secretary of State has also taken into account the best interests of the three children as a primary consideration. He notes that the appeal site provides a settled base and agrees with the Inspector that this is likely to contribute to family stability and to the welfare of the three children. He notes that the two older children are of school age and the third is approaching school age but that none of the children currently attend school (lR259). He agrees with the Inspector that the appellant and his wife have contributed to their own situation by giving up a pitch that the appellant had on his father's site, moving onto the appeal site without planning permission, and by failing to make any alternative provision. He notes the appellant acknowledged that he has not looked for any other sites and has declined the opportunity to apply for a pitch on a Council site (lR261). He agrees with the Inspector that there is no reason why the family could not be re-accommodated now, either by the appellant's father at his site at lrthlingborough or alternatively that the Council would try to find a pitch at the Kempston Hardwick traveller site and would give the family some priority because of their children (1R262). He notes the Inspector's conclusion that there is nothing to suggest that the Kempston Hardwick site is not suitable for a family and that whilst the facilities for keeping horses there are minimal, there is nothing to stop the appellant continuing to keep his horses at both the appeal site and his other grazing land. The Secretary of State agrees with the Inspector's conclusion that it is very unlikely that the, appellant and his family would have to resort to roadside living (IR 262).
29. The Secretary of State notes the Inspector's remarks at IR265-274 regarding other occasional and intermittent occupiers of the site. For the reasons given by the Inspector, he agrees that some weight should be given to the personal circumstances of Michael Moss and Michelle Stevens and Jim Draper and Wonny Jones.
30. The Secretary of State notes that apart from the appellant, his wife and Michael Moss that there is no evidence that any of the other present or former occupiers of the appeal site have gypsy and traveller status but agrees with the Inspector that this does not affect the weight that has been given to their housing needs or other personal circumstances.
Other matters
31. The Secretary of State has considered the Inspector's comments concerning the potential availability of sites at Ringstead at 1R277. He agrees with the Inspector for the reasons given that it would not be appropriate to give significant weight to any capacity in Ringstead.
32. The Secretary of State notes and agrees with the Inspector's comments concerning the fall-back position at IR 278.
Overall Conclusions
33. In deciding the appeal, the Secretary of State has had regard to section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise. The Secretary of State has had very careful regard to the Inspector's balancing of considerations at IR 280-291. Weighing against the appeal, the Secretary of State has found at paragraph 24 above that the proposal is contrary to the relevant policies of the development plan and the conflict with them carries considerable weight. At paragraph 19, the Secretary of State has found that the site's shortcoming, in respect of the accessibility by sustainable modes of transport, continues to weigh heavily against any continuation of the use as a gypsy and traveller site. At paragraph 28 the Secretary of State has found that it is very unlikely that the appellant and his family would have to resort to roadside living. In favour of the appeal, the Secretary of State has found at paragraph 25 that considerable weight should be given to the current unmet need for pitches, at paragraph 28 that considerable weight should be given to the personal circumstances of the appellant and his family, and at paragraph 29 that some weight should be given to the personal circumstances of Michael Moss and Michelle Stevens and Jim Draper and Wonny Jones. Overall, the Secretary of State concludes that in respect of a permanent permission the material considerations in favour of the appeal do not outweigh the policy conflicts with the development plan and therefore the appeal proposal should be determined in accordance with the development plan and permission refused.
34. The Secretary of State acknowledges that the refusal of planning permission would amount to interference with the rights of the appellant and his family and other occasional site occupiers under Article 8 of the European Convention on Human Rights (ECHR) and has taken account of the children involved as a primary consideration. He has gone on to weigh this against the wider public interest and concludes that dismissing the appeal against the refusal of permanent planning permission would strike an appropriate and fair balance.
35. The Secretary of State has gone on to consider whether a temporary permission would be appropriate and has had regard to the Inspector's comments at IR 286-297. The Secretary of State agrees that paragraph 25 of the PPTS provides that if the Council cannot demonstrate an up-to-date five year supply of deliverable sites, that this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission. In respect of the length of any temporary permission the Inspector reports (lR290) that any temporary permission should be for 2 years to allow sufficient time for the Meadow Lane development to be completed in February 2015 and for the site to operate for between a year to 18 months before an assessment can be made whether the development provides suitable acceptable living conditions. The Secretary of State has found at paragraphs 25-26: that planning permission for the Meadow Lane development exists; that there is a legal obligation entered into for the delivery of the site by February 2015; that the site will provide 14 new pitches which is sufficient to meet the District's requirement for a five year supply of deliverable sites; and that there is no reason why the Council will not meet its Responsibilities to deliver acceptable living conditions for future occupiers from this date. Unlike the Inspector, the Secretary of State has found that an assessment can be made now that the Meadow Lane development will provide a satisfactory answer to the area's unmet need for pitches from February 2015. In the interim, the Secretary of State has found at paragraph 28 that it is very unlikely that the appellant and his family will have to resort to roadside living and that there is no reason why the family could not be re-accommodated either by the appellant's father at his site at lrthlingborough or alternatively the Council would try to find a pitch at the Kempston Hardwick traveller site.
36. In the circumstances of the case, the Secretary of State considers that the conflict with the development plan policies would remain and continue to carry substantial weight even in the case of a temporary permission for 2 years and would not be outweighed by the material considerations in favour of the appeal proposal.
37. In coming to this conclusion, the Secretary of State has very carefully considered the Inspector's remarks at IR 292-297 concerning human rights and equality considerations. He acknowledges that the impact of this decision would interfere with the occupiers' home and family life and the peaceful enjoyment of their property which are protected by Article 8 and Article I of the First Protocol of the ECHRs. The Secretary of State has also taken account of the rights of the children living on the appeal site and he considers the best interests of those children to be a primary consideration in the determination of this appeal. He has given this substantial weight. He has gone on to weigh this against the wider public interest and unlike the Inspector he concludes that dismissing the appeal would strike an appropriate and fair balance.
38. In making his decision, the Secretary of State has had due regard to the requirements of the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality of opportunity and foster good relations between those with protected characteristics and others. In this regard and in coming to his decision he has considered the following impacts on the protected group: the need for sites, the provision of an alternative site that is suitable, affordable and available, and human rights considerations. Having balanced these potential equality impacts against the conflicts with the development plan policies and the imminent provision of an alternative suitable site to meet the need of the appellants, the Secretary of State is of the view that his decision to dismiss the appeal is proportionate and justified in the circumstances.
Conditions
39. The Secretary of State has considered the Inspector's comments at IR 298-303 and his recommended conditions at Annex 3 of the IR as well as national policy as set out in the Framework and the planning guidance. The Secretary of State is satisfied that the proposed conditions are reasonable and necessary and would meet the tests of paragraph 206 of the Framework. However, he does not consider that they overcome his reasons for dismissing the appeal.
Formal decision
40. Accordingly, for the reasons given above, the Secretary of State disagrees with the Inspector's recommendation. He hereby dismisses your client's appeal and refuses planning permission "
Case for the Claimant
i) the Inspector had set out in great detail at paragraphs [248- 254] his factual findings relating to the adverse environmental conditions at the Meadow lane site;
ii) the SSCLG had said, wrongly (DL [26]) that all the issues had been considered at the stage of the grant of planning permission. There was no evidence that they had been so considered;
iii) the SSCLG's assertion at [DL 35] that there was no reason why the Council would not meet its responsibilities to deliver acceptable living conditions for future occupiers from February 2015, was not based on any evidence. Further, it failed to grapple with the facts that;
a) the excessive levels of noise arose from the proximity of the site to the A 421. The planning condition on noise actually imposed and implemented could not achieve a reduction to the Council's predicted noise levels, and that even those levels exceeded the upper limit in BS8233 and would give rise to moderate and serious annoyance in outside living areas according to WHO standards (IR [250]);b) adverse odours arose from activities offsite (the abattoir and lairage) which were not under the Council's control. There was no evidence that the presence of the proposed travellers site had been taken into account by the Environment Agency in the preparation of the relevant odour management plan, nor that the level of odour had been measured on the site. This led to an obvious risk that the Meadow lane site would sometimes be subjected to unpleasant smells (IR [253]);c) the approved site levels would protect the pitches and access road themselves from flooding, but not the rest of the site. It is currently subject to the presence of standing water and waterlogging, and would have to be fenced off. The current levels of ponding would be increased by the works to achieve the approved site levels. No allowance had been made for the storage tanks and pumping stations (IR [253]);iv) the SSCLG's conclusion at (DL [26]) was not adequately reasoned, was Wednesbury unreasonable and disproportionate. That conclusion informed the SSCLG's conclusion at [35] that Meadow Lane site would provide a satisfactory answer to the need for pitches from February 2015.
v) the SSCLG was biased against the Claimant and his family because
a) as shown by the matters set out in my judgment in Moore & Coates v Secretary of State for Communities and Local Government & Ors [2015] EWHC 44 (Admin) [2015] PTSR D14, there is a bias by the SSCLG in his treatment of planning appeals relating to gypsies and travellers;b) the decision to recover jurisdiction, and the way in which the SSCLG dealt with the Inspector's findings and conclusions, was contrary to Article 6 ECHR, and the Court was invited to intervene under the principles in R(Alconbury Developments Ltd and others ) v Secretary of State for the Environment Transport and Regions [2003] 2 AC 295 to protect fairness and the independence of the planning system;c) he had not discharged the burden on him (see Chapman v UK [2001] 33 EHRR 18 at [103-4] to conduct an adequate assessment of the alternative accommodation relied on, given that the moving of the Claimant from his accommodation involved an interference with his rights under Article 8 ECHR, and the interference would be greater if there were no suitable alternative accommodation;d) in approaching that issue, the SSCLG had shown no interest in the evidence and conclusions of the Inspector. The analysis of the SSCLG at [28] and [37] was inadequate;e) a notional fair minded and informed observer would conclude that there was a real possibility that the SSCLG was biased (relying on the most recent restatement of that long established test in Turner v SSCLG, the Mayor of London and others [2015]EWCA 582 at [8] per Sales LJ endorsing Collins J at first instance);vi) given the relevance of Article 8 ECHR, and the fact that the Claimant's family included three children aged between 3 and 10, he had to take the deficiencies in the Meadow Lane site in assessing whether it was in the best interests of the children to live in the adverse conditions existing there. The Inspector had addressed that issue (IR [260]) and concluded that it would not be right for a family with children to be left with that as their only option, at least until the development could be shown to provide an acceptable environment. The overall effect of their being unable to live at the appeal site would not be in the best interests of the children [IR 264, 295]. While the SSCLG had weighed the best interests of the children against the wider public interest, he had never addressed them in the context of the issues relating to Meadow Lane.
Submissions for the Defendant SSCLG
i) there was agreement between the Inspector on most of the issues at the inquiry, and in particular on the fact that the grant of permission (permanent or temporary) would be contrary to the Development Plan, and was in an unsustainable location with poor accessibility by sustainable modes of transport (DL[33]);
ii) he gave weight to the current unmet need for pitches, and to the personal circumstances of the Claimant and other occupiers [33]. There would be an interference with their rights under Article 8 ECHR, and had taken account of the interests of the children as a primary consideration, but they were outweighed by the wider public interest, so that permanent planning permission should be refused [34];
iii) as to the grant of a temporary permission, he referred to his own conclusions at [25-26], and concluded that the permission at Meadow Lane existed, that a legal obligation required its delivery by 2015, that that would meet the 5 year requirement for pitches, and that there was no reason why the Council would not meet its responsibilities to deliver acceptable living conditions for future occupiers from that date. He disagreed with the Inspector that an assessment could not be made now that the Meadow Lane development would provide satisfactory answer to the area's unmet need for pitches from February 2015. Meanwhile, the Claimant and his family could be accommodated elsewhere (DL[35]);
iv) he was entitled to conclude that the wider public interest outweighed the interference with the occupiers' rights under Articles 1 and 8, and with any harm to the best interests of the children;
v) Mr Whale described the Inspector's conclusions about the Meadow Lane site at (IR [257]) as equivocal, with his approach being one of "Wait and See," not outright rejection. He submitted that the issue of whether Meadow Lane was a suitable site for occupation by pitches was a question of judgment, which was a matter for the SSCLG as decision maker.
A letter from Bedford Borough Council sent to the Court
Discussion and conclusions
i) as decision maker the Secretary of State is required to have regard to the statutory development plan and to all material considerations: see section 70 TCPA 1990. He must determine the appeals in accordance with the provisions of the statutory development plan unless material considerations indicate otherwise; see section 38(6) Planning and Compulsory Purchase Act 2004.
ii) the weight to be attached to a material consideration is a matter for the Secretary of State and not for the court: Tesco Stores Ltd v Secretary of State for Envt [1995] 1 WLR 759 (HL).
iii) he must take his own policy into account as a material consideration. He must interpret it correctly, and give reasons if he decides not to follow it. Gransden (EC) v Secretary of State for Envt [1986] JPL 519 at 521.
iv) he must give proper adequate and intelligible reasons for his decision which explain his conclusions on the principal important controversial issues in the appeal. The degree of particularity depends on the nature of the issues falling for decision, and need not refer to every material consideration but to the main issues in dispute. A reasons challenge will only be sustained if the party aggrieved can satisfy the court that he has been genuinely prejudiced by the failure to provide an adequately reasoned decision: see S Bucks DC v Porter (No 2) [2004] 1 WLR 1953 para 36 (HL).
v) as this was a case where the SSCLG had recovered jurisdiction, the Town and Country Planning (Inquiries Procedure) Rules 2000 (as amended) applied. By Rule 17(5)
"(5) If, after the close of an inquiry, the Secretary of State(a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the re-opening of the inquiry."vi) it follows that it is important to distinguish between differences on matters of fact , and conclusions on matters of planning judgement;
vii) as to Article 8 and the best interests of children, the approach should be as was set out by Hickinbottom J in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin), and endorsed by the Court of Appeal in Collins v SSCLG [2013] EWCA (Civ) 1193 [2013] PTSR 1594 per Richards LJ. He had referred to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, and H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2012] 3 WLR 90. As he said at [8] those cases explained in particular how the best interests of the child should be taken into consideration when considering the proportionality of interference with rights under article 8 of the European Convention on Human Rights. Richards LJ went on at [10]
"In Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin), which is perhaps the first occasion on which the Secretary of State made a clear concession that the principle in ZH (Tanzania) and H(H) applies in the planning context, Hickinbottom J considered at some length the judgments in those cases and how they affect the approach to be taken by a planning decision-maker. He derived the following propositions from the authorities (at [69]):"(i) Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account.(ii) Where the article 8 rights are those of children, they must be seen in the context of article 3 of the UNCRC, which requires a child's best interests to be a primary consideration.(iii) This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with those of his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and can properly represent and evidence the potential adverse impact of any decision upon that child's best interests.(iv) Once identified, although a primary consideration, the best interests of the child are not determinative of the planning issue. Nor does respect for the best interests of a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests of the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.(v) However, no other consideration must be regarded as more important or given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case. Further, the best interests of any child must be kept at the forefront of the decision-maker's mind as he examines all material considerations and performs the exercise of planning judgment on the basis of them; and, when considering any decision he might make (and, of course, the eventual decision he does make), he needs to assess whether the adverse impact of such a decision on the interests of a child is proportionate.(vi) Whether the decision-maker has properly performed this exercise is a question of substance, not form. However, if an inspector on an appeal sets out this reasoning with regard to any child's interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision-maker reached the decision that the adverse impact to the interests of the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact of the decision he has reached on the best interests of the child, and has concluded that impact is in all the circumstances proportionate ."In my judgment, that list of propositions is an accurate and helpful summary ."viii) I shall deal with the arguments on bias, the recovery of jurisdiction and Alconbury in due course.
i) findings of fact- e.g. on the levels of noise, the effect of the barrier on noise, the presence of odour, whether the presence of the site had been taken account of in the plans to control odour, the presence of the water, and the effect of the site works on the water levels;
ii) whether the effect of those matters made the site unsuitable as a residential site.
i) the findings about noise [IR 251] give a striking example of that, with the Council's excess of up to 5db LAeq 16hr) (that is the measure used- see IR [97]) being based on the provision of an acoustic barrier which was not now being provided. The Council's case was not that they would provide a better noise environment, but rather that the one provided pursuant to the permission was acceptable. (NB as that is a 16 hr Leq, that is not an occasional excess of up to 5 dB. It is one which reflects an average excess over the 16 hour period. That is also what one would expect where the dominant noise is from traffic);
ii) the odour from the abattoir and lairage is generated by activities outside the site, and the achievement of lower levels was not therefore for the Council, but for the Environment Agency and the operators of the abattoir, unless , which was never suggested by the Council, it took proceedings for statutory nuisance against the abattoir. The Inspector's findings and conclusions on the odours from the abattoir and lairage [253] undermined the Council's case [95], on this topic that all the issues had been addressed adequately, and there was nothing in the Council's case which addressed how the very real problems he had identified could be dealt with;
iii) The serious problem with ponding and waterlogging on the site [253] outside the areas of the pitches was not one where the Council had indicated that it would take any steps.
i) the recovery of jurisdiction is not a matter which can be challenged under section 288 of the Act (see Lewis J in Connors v SSCLG [2014] EWHC 2358 [2015] JPL 196 at [135]. In any event a recovery decision is not a consideration of the substantive merits of a planning appeal, but a procedural step- see R (Hadfield) v. Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1266 (Admin). The Court has stressed that any party with a meritorious case should not have any reasonable fears about the process: Hadfield, at [56], per Sullivan J as he then was;
ii) no-one could read my decision in Moore & Coates v Secretary of State for Communities and Local Government & Ors [2015] EWHC 44 (Admin) [2015] PTSR D14, as in any sense suggesting that there is a bias by the SSCLG in his decisions on planning appeals relating to gypsies and travellers. Indeed I expressly rejected that argument see [152-4]. That case concerned the issue of the delays in the hearing of such cases caused by a practice on recovery, in a way which breached the SSCLG's duties under the Equality Act 2010, and the consequent delays in the determination of appeals, contrary to Art 6 ECHR;
iii) the argument about Alconbury, or variants upon it, was put forward by the Claimants in Connors and also in Moore and Coates. It seems that despite the judgments in those cases, some members of the profession remain unwilling to accept that Alconbury is fatal to the arguments that the Secretary of State is unable to make a fair assessment of the planning merits, and that his being the decision maker offends the principles stated by the ECHR in Chapman v UK. .It needs to be emphasised that there is nothing wrong in law with the SSCLG being both policy maker and decision maker. I refer to the descriptions of the system in England and Wales set out by Lord Slynn of Hadley, Lord Clyde and Lord Hoffman in R (Alconbury Developments Limited) v. Secretary of State for Environment, Transport and the Regions), [2001] UKHL 23, [2003] 2 AC 295, [2001] 2 All ER 929, [2001] 82 P & CR 40, [2001] JPL 920, [2001] 2 PLR 76 ("Alconbury"), which authority is binding on this court. Lord Slynn said at paragraph 48:
"48. The adoption of planning policy and its application to particular facts is quite different from the judicial function. It is for elected Members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance and for these objectives to be set out in legislation, primary and secondary, in ministerial directions and in planning policy guidelines. Local authorities, inspectors and the Secretary of State are all required to have regard to policy in taking particular planning decisions and it is easy to overstate the difference between the application of a policy in decisions taken by the Secretary of State and his inspector. As to the making of policy, Wade & Forsyth Administrative Law, 8th ed (2000) p 464:"It is self-evident that ministerial or departmental policy cannot be regarded as disqualifying bias. One of the commonest administrative mechanisms is to give a minister power to make or confirm an order after hearing objections to it. The procedure for the hearing of objections is subject to the rules of natural justice in so far as they require a fair hearing and fair procedure generally. But the minister's decision cannot be impugned on the ground that he has advocated the scheme or that he is known to support it as a matter of policy. The whole object of putting the power into his hands is that he may exercise it according to government policy."As Mr Gregory Jones put it pithily in argument it is not right to say that a policy maker cannot be a decision maker or that the final decision maker cannot be a democratically elected person or body."iv) I would refer also to this passage in the speech of Lord Clyde at paragraphs 139 ff:
"139. The general context in which this challenge is raised is that of planning and development. The functions of the Secretary of State in the context of planning may conveniently be referred to as "administrative", in the sense that they are dealing with policy and expediency rather than with the regulation of rights. We are concerned with an administrative process and an administrative decision. Planning is a matter of the formation and application of policy. The policy is not matter for the courts but for the Executive. Where decisions are required in the planning process they are not made by judges, but by members of the administration. Members of the administration may be required in some of their functions to act in a judicial manner in that they may have to observe procedural rules and the overarching principles of fairness. But while they may on some occasions be required to act like judges, they are not judges and their determinations on matters affecting civil rights and obligations are not to be seen as judicial decisions. Even although there may be stages in the procedure leading up to the decision where what used to be described as a quasi-judicial character is superadded to the administrative task, the eventual decision is an administrative one. As was long ago observed by Lord Greene MR in B Johnson & Co (Builders) Ltd Minister of Health [1947] 2 All ER 395, 399:"That decision must be an administrative decision, because it is not to be based purely on the view that he forms of the objections, vis-ΰ-vis the desires of the local authority, but is to be guided by his view as to the policy which in the circumstances he ought to pursue."Moreover the decision requires to take into account not just the facts of the case but very much wider issues of public interest, national priorities. Thus the function of the Secretary of State as a decision-maker in planning matters is not in a proper sense a judicial function, although certain qualities of a judicial kind are required of him.140. Planning and the development of land are matters which concern the community as a whole, not only the locality where the particular case arises. They involve wider social and economic interests, considerations which are properly to be subject to a central supervision. By means of a central authority some degree of coherence and consistency in the development of land can be secured. National planning guidance can be prepared and promulgated and that guidance will influence the local development plans and policies which the planning authorities will use in resolving their own local problems. As is explained in paragraph I of the Government's publication Planning Policy Guidance Notes, the need to take account of economic, environmental, social and other factors requires a framework which provides consistent, predictable and prompt decision-making. At the heart of that system are development plans. The guidance sets out the objectives and policies comprised in the framework within which the local authorities are required to draw up their development plans and in accordance with which their planning decisions should be made. One element which lies behind the framework is the policy of securing what is termed sustainable development, an objective which is essentially a matter of governmental strategy.141. Once it is recognised that there should be a national planning policy under a central supervision, it is consistent with democratic principle that the responsibility for that work should lie on the shoulders of a minister answerable to Parliament. The whole scheme of the planning legislation involves an allocation of various functions respectively between local authorities and the Secretary of State. In placing some functions upon the Secretary of State it is of course recognised that he will not personally attend to every case himself. The responsibility is given to his department and the power rests in the department with the Secretary of State as its head and responsible for the carrying out of its work. Within his department a minister may well take advice on law and policy (Bushell v Secretary of State for the Environment [1981] AC 75) and the Secretary of State is entitled to seek elucidation on matters raised by the case which he has to decide, provided always that he observes the basic rules of fairness. In particular he should in fairness give the parties an opportunity to comment if after a public inquiry some significant factual material of which the parties might not be aware comes to his notice through departmental inquiry.142. There may be various agencies which will advise him on particular aspects of planning, as for example an agency skilled in the conservation of historic buildings. But it is a false analysis to claim that there is a lis between a developer and such an agency which will be heard and determined by the minister. As Lord Greene MR observed in Johnson, at p 399, in relation to objections to a compulsory purchase order proposed by a local authority:"it is not a lis inter partes, and for the simple reason that the local authority and the objectors are not parties to anything that resembles litigation. . . . on the substantive matter, viz whether the order should be confirmed or not, there is a third party who is not present, viz, the public, and it is the function of the minister to consider the rights and interests of the public."The minister is not bound to follow the view of any agency, nor is he bound to follow the desires or interests of any other Government department. He is not bound to apply a particular policy if the circumstances seem to him inappropriate for its application. He is not independent. Indeed it is not suggested that he is. But that is not to say that in making the decisions on the matters in issue in the present appeals he is both judge and party. It does not seem to me correct to say of the Secretary of State that he is judex in sua causa, at least in any strict sense of that expression. He is, as I have already sought to explain, not strictly a judge. Moreover the cause is not in any precise sense his own. No one is suggesting that he, or the officials in his department, have any personal financial or proprietary interest in these cases. The concern of the Secretary of State and his department is to manage planning and development in accordance with the broad lines of policy which have been prepared in the national interest."v) Lord Hoffman, in addressing the arguments raised there about bias, said
117. ..No one expects the inspector to be independent or impartial in applying the Secretary of State's policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy article 6 has nothing to do with the "safeguards" but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.118. My Lords, I can deal much more briefly with the other two cases. In Varey v United Kingdom Application No 26662/95 27 October 1999 the Commission considered a complaint by gypsies against whom enforcement proceedings had been taken for stationing caravans on land without planning permission. They had applied three times for permission. On the first occasion, an appeal to the Secretary of State was dismissed. On the second occasion, the inspector said that there had been a change in circumstances and recommended that permission be granted but the Secretary of State disagreed. He said that the new circumstances were insufficient to justify overriding the Green Belt policy. On the third occasion the inspector again recommended that permission be granted and for similar reasons the Secretary of State rejected his recommendation and dismissed the appeal. In no case did the applicants appeal to the High Court.119. The Commission, following the Bryan case, 21 EHRR 342, said that there had been no violation of article 6. The High Court's jurisdiction on appeal from the Secretary of State was sufficient. So the case adds little to Bryan itself. I would only comment that I find puzzling a remark of the Commission, at paragraph 78, that -"the procedural protection afforded to the applicants' interests by the process of a public inquiry before a planning inspector, who had the benefit of inspecting the site and of receiving written and oral evidence and representations, must be regarded as considerably diminished by the rejection on two occasions by the Secretary of State of the inspector's recommendations."120. The Secretary of State does not appear to have differed from the inspector on any finding of fact or evaluation of the facts. He disagreed because he did not think that the inspector had given sufficient weight to the importance of maintaining the Green Belt. This is a pure question of administrative policy or expediency. It has nothing to do with the issues on which it is essential for the inspector to be judicial and impartial. However, despite these remarks, the Commission concluded that even though the safeguards had been diminished, the procedure still complied with article 6.121. Finally there is Chapman v United Kingdom Application No 27238/95 18 January 2001, a decision of the Grand Chamber of the European court. This was another case of enforcement proceedings against gypsies. Her appeal on ground (a) was dismissed by an inspector exercising the power to determine the appeal under Schedule 6. She did not appeal to the High Court and complained that the High Court would not have been entitled to determine the merits of her claim that she should have planning permission. The court stated briefly that, following the Bryan case, the scope of judicial review was sufficient to satisfy article 6.122. My Lords, I conclude from this examination of the European cases on our planning law that, despite some understandable doubts on the part of some members of the Commission about the propriety of having the question of whether there has been a breach of planning control determined by anyone other than an independent and impartial tribunal, even this aspect of our planning system has survived scrutiny. As for decisions on questions of policy or expediency such as arise in these appeals, whether made by an inspector or the Secretary of State, there has never been a single voice in the Commission or the European court to suggest that our provisions for judicial review are inadequate to satisfy article 6."vi) I would refer also to this passage in the speech of Lord Clyde at paragraphs 158ff:
"158. So far as the content of the dispute is concerned, the present point is that the Secretary of State should not be the decision-maker. The challenge is advanced substantially as one of principle, although in relation to the Huntingdonshire case a variety of particular points were raised regarding the interest or involvement in the Alconbury proposals on the part of various persons connected with the department or the Government. But I find it unnecessary to explore these in detail. The Secretary of State is admittedly not independent for the purposes of article 6(1). I do not consider that it can be decided at this stage whether the interest or involvement of these other persons is going to provide grounds for challenging the legality of the eventual decision. Grounds for challenge which are at present unpredictable may possibly arise in due course. As matters presently stand the issue is whether article 6(1) is necessarily breached because the decision is to be taken by the Secretary of State with the assistance of his department. The challenge is directed not against the individual but against the office which he holds. The question which arises is whether the Secretary of State or some person altogether unconnected with the Secretary of State should make the decision.159. As I indicated at the outset, Parliament, democratically elected, has entrusted the making of planning decisions to local authorities and to the Secretary of State with a general power of supervision and control in the latter. Thereby it is intended that some overall coherence and uniformity in national planning can be achieved in the public interest and that major decisions can be taken by a minister answerable to Parliament. Planning matters are essentially matters of policy and expediency, not of law. They are primarily matters for the executive and not for the courts to determine. Moreover as matter of generality the right of access to a court is not absolute. Limitations may be imposed so long as they do not so restrict or reduce the access that the very essence of the right is impaired (Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249, para 72). Moreover the limitation must pursue a legitimate aim and the relationship between the means employed and the aim sought to be achieved must be reasonably proportionate (Ashingdane v United Kingdom (1985) 7 EHRR 528). In the context of the present cases the aim of reserving to a minister answerable to Parliament the determination of cases which will often be of very considerable public interest and importance is plainly a legitimate one. In light of the considerations which I have already canvassed it seems to me that there exists a reasonable balance between the scope of matters left to his decision and the scope of the control possessed by the courts over the exercise of his discretionary power.160. Accordingly as matters presently stand I find no evident incompatibility with article 6(1). That view seems to me to accord fully with the decisions of the European Court of Human Rights. A consideration of the cases on the specialised area of town and country planning to which I now turn suggests that the court has recognised the sufficiency of a limited appeal and the decisions fully support the view which I have expressed "vii) There is no evidence of any bias specific to this case. The complaint that the SSCLG failed to address the Meadow Lane issue properly is not an allegation of bias, but one that he failed to deal with the matter adequately.
Order
Note 1 Gypsy and Traveller Accommodation Assessment [Back] Note 2 Internal Drainage Board [Back] Note 3 Environment Agency [Back] Note 4 Emergency Stopping Place [Back]
