The Honourable Mr Justice Silber
I. Introduction
- South Cambridgeshire District Council ("the claimants") seeks an injunction under section 187 B of the Town and Country Planning Act 1990 ("the Act") to require the defendants to remove caravans stationed on land known as Pine View, which forms part of Smithy Fen, Cottenham in Cambridgeshire ("the land") and which is denoted in the plan attached to this judgment as areas H, I and J. The claimants also seek further ancillary relief against some of the defendants.
- Three enforcement notices have been served in respect of different parts of the land and they have all been upheld on appeal. Many of the defendants applied for planning permission to use the land as a caravan site. After an eight-day inquiry into these applications for planning permission, the Inspector on 10 January 2005 recommended first that the applications for planning permission be refused and second that the appeal against the third enforcement notice be dismissed.
- On 11 March 2005, these recommendations were upheld on appeal by the First Secretary of State who also refused to extend the time for complying with the third enforcement notice. After the deadline for complying with each enforcement notice passed, the claimants resolved to seek the injunction, which is the subject-matter of the present application. The purpose of the present injunction is to seek compliance with the enforcement notices against the defendants, who have been described in their counsel's written skeleton argument as "a family group of ethnic 'Irish travellers'".
- After the oral hearing was concluded, I received a substantial number of further written submissions and these were partly occasioned by some decisions which were given shortly after I reserved judgment. The handing down of this judgment was unfortunately delayed partly because of these written submissions but also because I was out of London on circuit for much of the remainder of last term. When I was about to circulate a draft of the judgment in early April 2006, I was informed that the Court of Appeal was about to deliver judgment in a case which might be determinative of one of the major issues on this application. I then delayed handing down this judgment. On 5 May 2006 the Court of Appeal gave judgment in that case (South Bedfordshire District Council v Price [2006] EWCA Civ 493) and subsequently, I heard further oral submissions on its effect. I am grateful to counsel for their helpful submissions.
II. Chronology
- In early 2003 an access track and a bund on area I and J marked on the attached plan were constructed with area H then being occupied by gypsy caravans.
- On 19 March 2003, the first enforcement notice was served and it prohibited use of area H as a residential caravan site and the ancillary provision of drains, accesses and hard-standings. The first defendant appealed against this notice.
- On 19 March 2003, a second enforcement notice was served relating to areas I and J and it required the removal of the earth bund and the track. A stop notice was also served. The thirty-fourth defendant appealed against the second enforcement notice.
- In April 2003 caravans arrived on area I and plots 9 and 10 of it were occupied. On 28 August 2003, a third enforcement notice was served which related to area I and J and it prohibited its use as a caravan site and ancillary provision of drains, accesses and hard standings. The second defendant appealed against this enforcement notice. A stop notice was also served.
- On 18 November 2003, the Inspector upheld the first and second enforcement notices. Applications were also made for planning permission to use areas H, I and J as caravan sites but these applications were refused by the Council and the applicants then appealed to the Secretary of State.
- The deadline for compliance with the first and second enforcement notices was 18 February 2004 but they still have not been complied with. As I have already explained, the Inspector, who considered the third enforcement notice, conducted a hearing and made recommendations which were accepted by the First Secretary of State.
- On 6 July 2005, in circumstances whish I will describe in paragraphs 31 to 33 below, the relevant committee of the claimants resolved to seek the injunction, which is the subject of the present application. The claim form was issued on 19 July 2005.
- On 5 August 2005, Gray J granted an interim injunction. Subsequently on 18 November 2005, Cresswell J made a number of directions. The only defendants who have participated in the present proceedings are the second to seventh defendants, the eighteenth and the twenty-eighth defendants ("the represented defendants") all of whom have been represented by counsel.
- There are two features which distinguish this case from the facts in many other cases concerning gypsies, of which the first is that these defendants own the land, which is the subject matter of the present application and so this distinguishes their claims from those in many of the reported cases in which gypsies have only had a short connection with the place from which the council is seeking to evict them. Second, the land in this case is not "green belt" land. I will bear those points in mind in considering all aspects of this application.
- None of the other defendants have entered Acknowledgments of Service or made any representations or adduced any evidence and it appears that they have now left the land. If, as I will explain is the position, the claimants succeed against the represented defendants, they must also succeed against the unrepresented defendants. Thus the remainder of this judgment will focus on the claims against the represented` defendants
III. The Statutory Provisions
- Section 187B of the Act reads as follows:
"(1) Where a local planning authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part."
(2) On an application under subsection (1) the Court may grant such an injunction as the Court thinks appropriate for the purpose of restraining the breach."
IV. The Issues
- Mr. Alan Masters, counsel for the represented defendants, contends that it would not be appropriate to grant the injunctive relief sought at this stage essentially for two reasons of which the first is that in all the circumstances including the defendants' rights under article 8 of the European Convention on Human Rights ("the ECHR") it would not be proportionate or correct to allow the claimants' application ("the proportionality issue"). The second ground of challenge is that because of a recent circular C1/2006 ("the 2006 circular"), there are now such prospects of the defendants obtaining either from the claimants or on appeal at least a temporary consent that it would not be appropriate to grant the relief sought by the claimants ("the 2006 circular issue").
- Mr. Richard Langham, counsel for the claimants, contends that these contentions on the proportionality issue are flawed principally because most of these matters were considered by the Inspector and rejected by him in his report and recommendations, which was then upheld by the First Secretary of State. He also submits that the terms of the 2006 circular will not enable the defendant to obtain either from the claimants or on appeal at least a temporary consent In any event, he contends that there is no merit in the submissions made on behalf of the represented defendants with the consequence that the claimants are entitled to the relief claimed.
- There has been some disagreement about what the Inspector recommended and also what weight I should attach to the recommendations of the Inspector and decision of the First Secretary of State.
IV. The basis and relevance of Inspector's Report and Recommendations.
- In his very detailed report, the Inspector explained that the refusal of planning permission was for reason of a conflict with policy restricting development of the countryside and a conflict with the policy for gypsy caravan sites. The reasons for those conflicts with policy were first because the occupiers were outside their scope, second because of the harm to the landscape and rural character of the area which the defendants would cause and third because the defendants' application would be contrary to the criteria of the local planning policy. The Inspector recorded that the appellants at the Inquiry, who were the second, sixth, seventh, eleventh, twelfth, sixteenth, eighteenth, twenty second, twenty fourth, twenty sixth, thirty first, thirty second and other defendants, had contended that their applications for planning permission were in accordance with policy and that a base near Cambridge was very suitable for them as sellers of furniture.
- The Inspector recorded that the claimants accepted that there was an unmet local need for gypsy/ traveller accommodation. The Residents Association objected to the application for planning permission relying on, among other matters, the failure of the proposed application to conform to the local development plan.
- The Inspector reported for the reasons given by him that the fact that the proposed development would conflict with aspects of local planning policy and the development plan should be given considerable weight. He explained that having taken all factors in favour of the applicant into account, the application for full planning permission should fail. The Inspector concluded by stating, with my emphasis added, that:
"14.85. In bringing together the overall merits of the appeals, I begin with the approach followed in section B5, that it is to take the example of plot 5 Pine View first. In paragraph 14.55 I noted the conflict with criteria (3) and (4) of policy HG23. The principal additional considerations are the contribution that would be made to the need for gypsy sites and the personal circumstances of the occupiers of the plot, including the difficulty of finding alternative accommodation and the effect on education. I do not regard those factors as sufficiently compelling to justify the grant of planning permission in this location. Correspondingly, the case against any other plot is even stronger because for those the conflict with criteria (2) and (9) of HG23 would also apply. Landscaping has been taken into account within criterion (4) but planning conditions would not overcome the objections.
14.86. It is of considerable importance whether granting planning permission for a single plot, including plot 5, is a realistic option whether in practice such a decision would be so likely to create a precedent for further development that the consequences of that further development should be weighed in the balance. Whereas a single plot with distinctive personal circumstances would be a more limited precedent, the unusual physical character of the appeal sites means that even this would have a significant potential to lead to further development. The incremental process might be a series of small additions but it remains likely that these would never occur, for reasons I have elaborated in paragraphs 14.11-14.15 and 14.47. In practice therefore cumulative impacts and the collective merits of the appeal are relevant.
14.87. Judged in this way, the case against the grant of planning permission is very strong. The appeals would be contrary to policy HG23 because of the conflict with criteria (2), (3), (4), (5) and (9) and there would be the prospect of adverse effects within the education service from fluctuating traveller numbers. In addition, allowing these appeals would create a precedent for further development within the rectangle at Smithy Fen. It matters little whether that precedent resulted in rapid further development or a series of smaller schemes in which it was argued that the additional visual impact would be slight because of the setting provided by lawful development and that other impacts, such as on criteria (2), (5) and (9) would be insignificant when evaluated incrementally. The eventual effect would be likely to be further loss of open land, a much higher level of occupation and the consequent additional traffic, and a detrimental effect on highway safety and the amenity of residents".
- In reaching this conclusion, the Inspector explained that he had considered the arguments of the appellants before him, who included many of the defendants to the present application, based on their personal need for accommodation, education and other services before concluding (with emphasis added) that:
" 14.84. My overall view is that, whilst being very aware of the problems associated with ' insecurity' that might follow the dismissal of these appeals, the personal circumstances in all these cases fall short of being sufficient to outweigh the non-compliance with the development plan, and other disadvantages of the proposals".
- He also concluded that there would be no breach of article 8 or of article 1 of Protocol 1 of the ECHR. The Inspector then went on to consider whether there should be temporary planning permission. He rejected that suggestion explaining that there were two lines of argument and stating with (my emphasis added) that:
"14.89. Firstly, the reason for a temporary planning permission might be that these sites could eventually be selected as part of the district-wide site identification following the quantitative assessment now being carried out. In my view the objections to the development here are so compelling that this argument is wholly without merit.
14.90. The second reason why a temporary planning permission might be granted would be in order to enable occupation of the land until the appellants have an alternative site or sites to which to relocate. Consideration of this alternative should balance the objections to the use of the land during the period with the benefits (or avoidance of detriment) to the appellants that would accrue. The harm, including the conflict with the development plan, has been set out below.
14.91. Given the objections to the appeal development on a permanent or
continuing basis, an estimate of the timescale within which relocation would occur is very relevant to the suitability of this outcome. In effect the case being put at the inquiry is that the relocation would follow the identification of sites subsequent to the current quantitative assessment. Estimates of the time for this ranged from 2-5 years, so that the earliest date when a new site (or sites) might be available would be the summer of 2006. These time estimates will have to include consultation between district councils (and with the County Council) and with the public. There might be representations from gypsies (including these appellants) during this process, adding to the time taken. It is reasonable to expect that planning permission and land acquisition will normally be required. The financial resources of the appellants are likely to be relevant to the feasibility of this process. These considerations suggest that a satisfactory outcome may take longer than two years, possibly considerably so. Two other matters are of some, perhaps peripheral, relevance. Firstly, if this approach were followed there would be no reason for the appellants to search more widely, or at all, for alternatives to the appeal sites on which to provide a base. Secondly it would tend to put the onus for finding a suitable permanent site on the Council…..
14.94. In view of the considerable planning objections to this development and the likely period for which the use would continue I do not consider that temporary planning permission should be granted, either for a single plot or collectively".
- The case for the claimants is that I should attach great weight to the reasoning and the conclusions of the Inspector, which, as I have explained, were upheld in all material respects by the First Secretary of State. Neither the recommendation nor report of the Inspector nor the decision of the First Secretary of State has been the subject of any judicial challenge by the represented defendants, who were involved in the Inquiry, nor by anybody else.
- Mr Langham complains that many of Mr Masters' submissions ignore the weight, which should be given to the planning decisions of the council, the report of the Inspector and the decision of the First Secretary of State. So that is an issue to which I must now turn.
V. The Effect of the decisions of the Council, the recommendations and report of the Inspector and the decision of the First Secretary of State.
- In South Bucks DC v Porter and another [2003] 2AC 558, the House of Lords considered the approach which a court should adopt to planning decisions when considering an application for the kind of section 187B relief sought in the present case. They unanimously approved the approach of Simon Brown LJ (as he then was) when giving judgment in that case in the Court of Appeal [2002]1 WLR 1359. In the light of the controversy between counsel on the weight to be attached to the previous planning decisions, it is necessary to set out in some detail (with my emphasis added) the approach of Simon Brown LJ, which was using the paragraph numbers in the Court of Appeal's judgment that:
(a) "……It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites."...paragraph 38);
(b) "Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical" (ibid);
(c) " If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken" (ibid);
(d) "Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission" (ibid);
(e) "Relevant too will be the local authority's decision under section 187B (1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality" (paragraph 39);
(f) "Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case" (paragraph 40);
(g)"True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate' - in today's language, proportionate. The approach in the Hambleton case [1995] 3 PLR 8 seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under section 6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the gypsy's private life and home and the retention of his ethnic identity - are at stake". (Paragraph 41) and
(h) "I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."(Paragraph 42).
- The approach that a court should adopt on a section 187B application was subsequently considered by the Court of Appeal in Davis v Tonbridge and Malling Borough Council [2004] EWCA Civ 194 when Auld LJ (with whom Arden and Jacob LJJ agreed) explained that:-
" 37. Thus, Lord Bingham's reasoning, and that of the other Law Lords, in endorsing Simon Brown LJ's analysis of the balance to be sought between public and private interest in such cases, was to recognise two stages before, or certainly by the time, injunctive relief is sought: first, to look at the planning merits of the matter, and, in doing so, to accord respect to the local planning authority's conclusions; and second to consider for itself, in the light of the planning merits and any other circumstances, in particular, those of the defendant, whether to grant injunctive relief. Although all of their Lordships spoke in similar terms; the following passages from the speech of Lord Clyde are typical of their general approach:
70. But the enforcement of the planning decisions which have been reached by planning authorities does not in my view strictly involve the exercise of a planning judgment. …
71. In exercising its power the court must not re-assess matters which are the subject of a planning judgment. But that does not mean that the factors which have been considered by the authority in making their planning judgment may not be properly taken into account by the court in deciding whether or not to grant this particular remedy. In looking at the factors which weighed with the authority the court is not embarking upon a reassessment of what was decided as [a] matter of planning judgment but entering upon the different exercise of deciding whether the circumstances are such as to warrant the granting of the particular remedy of an injunction.
…73. Accordingly, in my view section 187B allows and has always allowed the court in the exercise of its discretion in granting an injunction to weigh up the public interest in securing the enforcement of planning policy and planning decisions against the private interests of the individuals who are allegedly in breach of planning control. In particular, I would hold that it is open to the court to consider questions of hardship, particularly as regards health, arising out of the effect on such individuals of a grant of an injunction. …."
- In Porter, Lord Bingham had stated in paragraph 31 of his speech that:
"….When application is made to the court under section 187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and nonetheless resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests…."
VI. The Steps taken by the Claimants before the present application was brought.
- Before deciding whether to start these proceedings, the claimants carried out detailed inquiries and consideration of the personal circumstances of each plot occupier. This entailed not merely approaching the relevant school and health authorities but also interviewing the occupiers and completing audit forms. The local Health Trust and the Cottenham Village School responded explaining that there were no special issues which the claimants should bear in mind relating to the defendants before taking any enforcement action. It was pointed out that attendance rate of the defendants' children "was well below that of the majority of students at the college". The responses to the claimants' inquires of the defendants were detailed and were recorded.
- The claimants' Development and Conservation Sub-Committee ("the DCSC") met on 14 June 2005 to discuss the position as the defendants had not complied with the Secretary of State's decision after the deadline for compliance had passed.
- Mr Gareth Jones, the claimants' Deputy Planning Director has explained in his first witness statement that:
"73. The Committee met on 6 July 2005 to consider what action to take following the expiry of the period for compliance in the third enforcement notice. Members considered two reports dealing with this (GJ20). It can be seen that the longer of these dealt at length with Government policy on enforcement action against gypsies, the planning objections found by the Secretary of State and questions of possible racial discrimination. Members were specifically reminded that, as [the claimants] were unable to offer any alternative accommodation to persons displaced from the land, the effect of eviction action would be to render those involved homeless, and would thus engage their Article 8 rights. Members were told that any interference with Article 8 rights had to be justified within Article 8(2) and be proportionate.
74. As for the personal circumstances of the present occupiers, officers gave to members the human rights audits completed on behalf of all the occupiers and explained their import.
75. Councillors were reminded of the different enforcement options open to [the claimants] including prosecutions for breaches of the enforcement notices and direct action under s178 of the Town and Country Planning Act 1990.
76. Members voted unanimously to commence these proceedings.
77. Members clearly accepted the assessment made by the Inspector and the Secretary of State as to the planning harm caused by the present occupation of the Land.
78. Given the contents of the report and the checklists I consider that the decision was taken after a full consideration of the hardship that would be caused to the occupants by eviction and of questions of proportionality and necessity".
32. Mr Gareth Jones has referred in a subsequent witness statement to the need for gypsy sites in the area and the need for the claimants to identify some extra land for gypsy caravans. He explained that he was certain that it "will take a considerable period of time measured in years before sites are identified, granted planning permission, cleared and developed". There is also evidence from Mr Jones that on 4 January 2006, he presented a further report to the DCSC for the purpose of updating it on matters relating to the present application. A preliminary report has been produced by Dr Home which showed that the need for gypsy sites in the claimants' area was greater than had originally been believed to be the case.
- It is appropriate at this point to consider Mr Masters' point that the court's functions on a section 187B application is a "very different" balancing exercise from that performed by the First Secretary of State. Indeed I will apply the principles as explained by the House of Lords in Porter (supra) and more recently by the Court of Appeal in Davis (supra).
IV. The Proportionality Issue
- Mr Masters contends that there are many reasons why it would not be proportionate to make the orders sought by the claimants with the result that the article 8 and other rights of the defendants would be infringed and I now turn to consider these grounds.
(i) The Two Vacant Gypsy Sites
- The represented defendants complain that "a unique but disturbing" feature of the present case is that the County Council has two vacant public gypsy sites, which are at Willingham and at Meldreth and to which the represented defendants would happily move. I am not persuaded by the represented defendants that this complaint is valid or that it is a factor, whether taken by itself or whether taken with other complaints, which means that the claimants should not be entitled to the relief claimed.
- My first reason for that conclusion is that the claimants are not empowered or authorised to re-open these sites, which belong not to them but to the County Council. It is noteworthy that the evidence shows that these sites were closed because of "severe disorder and vandalism". In my view, the claimants cannot even be expected to seek a compulsory purchase order bearing in mind that this is a precarious and extreme course, which in any event would have to be confirmed by the Secretary of State. In this case, there would be the additional difficulties for the claimants because the County Council had closed the sites for apparently good reasons and because it is not prepared to discuss reopening the site at Meldreth. The Council cannot in those circumstances be expected to seek a compulsory purchase order. I note that the Inspector, who considered the possible use of these two sites, did not suggest that a compulsory purchase order would be appropriate.
- Second, there are gypsy sites for English gypsies close to both the sites at Meldreth and Willingham and they would object to either of these sites being used for Irish gypsies, such as the defendants. The hostility of English gypsies to Irish gypsies and vice-versa is well known, significant and disturbing.
- Third, the possible reopening of these two sites was canvassed by the representatives of the travellers and the represented defendants before the Inspector. It was pointed out that the requests to reopen these sites had been "steadfastly refused" by the County Council and by the District Council. The Inspector concluded that the submissions of the appellants "implied that the Council had been acting unreasonably in failing to meet the need and in closing the two sites" but he considered that this submission was not supported by the evidence and that the closures took place more than six years before his report in January 2003. He also pointed out in paragraph 14.92 of this report that:
"no consultation with those affected has occurred nor have the views of the County Claimants as landowners been sought. Given that the sites resulted in problems previously and that they have been closed for a considerable period, during which local circumstances may have changed, it cannot be taken for granted that these would be regarded as suitable sites for this use in the future"
- Fourth, it is of great significance to the claimants' case that the Inspector and later the First Secretary of State both reached the conclusions for planning reasons that the represented defendants' use of the land could not be allowed to continue until an alternative site was made available to the defendants. In other words, the absence of an alternative site was not considered to be a factor which should or could override the major planning objections, which had been upheld by both the Inspector in his recommendations and by the First Secretary of State in his decision.
- The represented defendants also contend correctly that a recent assessment shows the high level of need which it is contended should have been addressed by the claimants since 1994. The submission of the represented defendants was that the claimants were only belatedly first considering this need for accommodation for gypsies and second appreciating that they had to allocate a substantial number of sites to meet this unsatisfied need. I should record that the represented defendants have stated that they would be willing to go to on any idle public sites or to swap their land or to use any site which the claimants would find as part of their exercise to find suitable sites.
- The basic issue for the Inspector was to determine whether the absence of any suitable available sites for the defendants when considered together with the personal circumstances of the applicants before him and the failure of the claimant to find or to provide any alternative sites for those people meant that they should be allowed to stay on the land at least temporarily notwithstanding the adverse consequences caused by them remaining. The conclusion of the Inspector on this issue (which was upheld by the First Secretary of State) was (with emphasis added) that:
"14.84 My overall view is that ,whilst being very aware of the problems associated with 'insecurity' that might follow the dismissal of these appeals ,the personal circumstances in all these cases fall short of being sufficient to out weigh the non-compliance with the development plans, and the other disadvantages of the proposals"
- This is a critical conclusion because as was explained by Lord Clyde in the part of his speech quoted in paragraph 27 above, this court now has to look at the planning aspects of the matter while according "respect to the local planning authorities' conclusions" and it "must not reassess matters which are the subject of a planning judgment".
- The planning judgment of the claimant was that the defendants should cease to keep caravans on the land because it contravenes the local and other plans. In this case unlike in Porter's case, the decision of the local authorities has been supported by the Inspector after a lengthy hearing and also upheld by the First Secretary of State.
- If, which is not the case, I had been in any doubt about whether I should show respect for the claimants' decision on this issue, first the subsequent report and recommendations of the Inspector reached after a lengthy inquiry and second the decision of the First Secretary of State upholding those conclusions would constitute cogent additional reasons for showing substantial respect to the planning judgment of the claimants. I will approach those matters in accordance with Lord Clyde's approach and this means that the unsatisfied needs for gypsy sites in the word of the Inspector's decision "fall short of being sufficient to outweigh the non-compliance with the development plans and other disadvantages of the proposals".
(II) The Homelessness Applications
- Mr Masters also complains that there was a failure on the part of the claimants to properly exercise their duty under the housing legislation to find suitable alternative accommodation.
- He referred to the decision of Codona v. Mid-Bedfordshire Council [2004] EWCA Civ 925 in which the Court of Appeal upheld a decision that on the facts of that case, an offer to homeless gypsies of "bricks and mortar" accommodation satisfied the council's statutory duty under the housing legislation. The Court of Appeal recognised that the special consideration had to be given to the needs and different lifestyles of gypsies. Indeed, Auld LJ explained that this:
"47.. requires the authority carefully to examine a gypsy's claim for such special consideration and, if satisfied that it is genuine, whether in all the circumstances of the case, it should attempt to meet it, and if so how"
- In the present case, there is clear evidence first that the claimants have always accepted that the defendants are gypsies with a genuine cultural aversion to conventional housing and second that the claimants have considered whether it had any other caravan sites to offer to the defendants. In the light of Mr Masters' sustained submission that the claimants failed to comply with their obligations, it is now necessary to explain and consider in some detail what the claimants did.
- Mr Steve Hampson the Director of Housing and Environment Services of the claimants stated that after a group of occupiers of the land including the sixth, eighteenth and twenty-eighth defendants attended the claimants' offices on 1 August 2005 and made homeless applications, each applicant was then interviewed by housing officers. The results of the interview were recorded on the claimants' standard homelessness application forms. The basis of these homelessness applications was that they would become homeless if the claimants proceeded to obtain the relief sought in the present proceedings. Mr Hampson recorded that each applicant had children and was therefore regarded as having a priority need.
- Mr Hampson explained that the eighteenth defendant and his wife told the officers of the claimants first that they had lived at Plot 5 for five years, second that they had three children aged ten years, five years and one year and third that Mrs O'Brien who was pregnant, also suffered from asthma as well as a fear of enclosed spaces. They were also told that the eighteenth defendant was self-employed.
- According to Mr Hampson, James O'Brien, the twenty-eighth Defendant and his wife, the twenty-ninth Defendant, told the officers first that they had lived at plots 9/10 for three years, second that they had never lived on an authorised site, third that they had four children born in 1994, 1995, 2001 and 2002, fourth that Mr O'Brien's occupation was selling furniture and fifth that he was unable to give any national insurance number for himself.
- Mr O'Brien, according to Mr Hampson, explained first that they had bought Plots 9 and 10 without authorisation but they did not make any prior enquiries and second that when they arrived on the site two brothers of Mr O'Brien namely the sixth and eighteenth Defendants were already there. Mr O'Brien also said that the second, third and fifth Defendants were his father, mother and sister respectively and that he wanted them to be joined in his homelessness application.
- There was also evidence from Mr Hampson first that Mr Michael O'Brien and his wife, the sixth and seventh defendants, had been on the land since 1999, second that they had three children born in 1998, 2000 and 2004, third that one of the children has asthma, and fourth that Mr O'Brien is self-employed earning up to £200 a week with the second defendant as his next-of-kin.
- Mr Hampson also said that other homelessness applications were received from those living at the site other than the defendants. On 2 August 2005, the Housing Advice and Homelessness Manager of the claimants wrote to each of the relevant applicants asking for further information relating to each of their homelessness applications namely proof of identity, dates of birth, national insurance numbers, medical information, the value of their mobile homes and caravans and other matters. In each letter, the Manager stated that the claimants were investigating the options available and that they would advise the applicants accordingly. The Manager also stated that if an applicant needed accommodation urgently, this would probably have to be bed and breakfast accommodation.
- Unfortunately none of the applicants responded to those letters and so on 27 October 2005, the Housing Advice and Homelessness Manager of the Claimants again wrote to the applicants stating that it had not been possible to make a decision on their homeless applications because the claimants had been unable to verify the information contained in the application forms. The requests for the information contained in the earlier letters of 2 August 2005 was repeated. No reply has ever been received to any of these letters.
- It is also relevant that Mr Hampson explained that the claimants had sent copies of each of those letters to Jacqueline Bolton of The Orminston Trust, which is a charitable organisation involved in providing assistance and advice to gypsies at Smithy Fen. In spite of sending those letters, no further information has been given. Mr Hampson explains that in the absence of any of this information, the claimants are simply unable to determine the homelessness applications. He did explain that if the claimants as the local housing authority were to come under duty to provide housing assistance to the applicants, it would not be possible to obtain pitches on a caravan site and that it is likely that in the first instance the claimants would discharge their duties by the provision of "bed and breakfast" accommodation. In my view, there can be no criticism of the claimants for the way in which they have dealt with these homelessness applications. Thus the defendants cannot obtain any benefit from the handling of their homelessness applications by the claimants in resisting the claimants' present claim for section 187B relief.
(iii) A Condition Precedent to Enforcement?
- Mr Masters submitted that before section 187B relief can be or should be granted, the court has to be satisfied by the claimants that they had discharging all their duties including those under the Housing Acts. It was said by him that the decision in Porter supported that proposition.
- I am unable to accept Mr. Masters' proposition because the approach advocated in Porter was that the court had to consider among other things whether there was any prospect of the current planning judgments of the Council being reversed in the future as well as the personal circumstances of the defendants. In this connection, a failure by a local authority to perform some relevant duty might be material to those points but such an omission certainly could not preclude granting section 187 B relief.
- No statement in Porter or any other case has been produced which shows that the court is deprived of its power to make a section 187B order if there was some duty which local authority has not performed. Of course, the local authority is obliged to take into account the personal circumstances of those against whom it is seeking section 187B relief.
- This means that the court has to consider any information about personal circumstances of which it knows and where as in the present case, the represented defendant have had the benefit of being represented by solicitors and counsel, the court is entitled to assume that those defendants have explained all relevant matters. Indeed as Mr. Gareth Jones explained the claimants went to some lengths to obtain the necessary information from the defendants before the decision was taken to bring the present claim.
- It seems clear that the decision-making process of the council is relevant but not for the reasons suggested by Mr Masters; the true position is that if the council's decision to seek an injunction was founded on a full understanding of the personal circumstances of the relevant defendants and a proper consideration of the questions of necessity and proportionality, the very fact that such a decision has been made weighs heavily in favour of granting the section 187B relief as it has been explained by Lord Bingham in paragraph 31 in Porter and by Simon Brown LJ at paragraph 39 in Porter, which I have quoted in respective paragraphs 30 and 29 above
- In this case, as I explained in paragraph 31 above, the report to the DCSC which made the decision to pursue the section 187B application, had considered the issue of personal hardship with the benefit of the Inspector's report and recommendations which contained an assessment of the personal circumstances of the occupants and also the fresh enquiries that were made together with on-site interviews and audit of needs of the occupants. I agree with Mr Langham that it is difficult to see what more the claimants could or should have done and Mr. Masters has not persuaded me that anything more should have been done by the claimants
(iv) The Planning Merits
- Mr Masters contends that in the words of his second written skeleton argument that the "planning merits here were.. finely balanced". That is not a quote from or anywhere near being an accurate summary of the Inspector's report or recommendations or of the views of the First Secretary of State. In order to explain why I must reject his submission, it is necessary to repeat that in paragraph 14.87 of the report, the Inspector stated (with emphasis added) that:
"the case against the grant of planning permission is very strong. The appeals will be contrary to HG 23.. and there would be the prospect of adverse effects within the education service and fluctuating traveller numbers. In addition, allowing these appeals would create a precedent for further development within the rectangle at Smithy Fen. It matters little whether that precedent resulted in rapid further development or a series of smaller schemes in which it was argued that the additional visual impact would be slight because of the setting provided by lawful development and that other impacts, such as on criteria (2),(5) and(9) would be insignificant when evaluated incrementally. The eventual outcome would be likely to be further loss of open land, a much higher level of occupation and a consequent additional traffic, and a detrimental effect on the highway safety and the amenity of residents".
- Furthermore I have already quoted in paragraphs 21, 22 and 23 various extracts from the Inspector's report, which show why he rejected even the application for temporary permission. In my view the claimants are entitled to the full measure of respect, which was referred to by Auld LJ in the passage cited in paragraph 27 above bearing in mind the existing very adverse judgment of the consequences of giving planning consent and in particular that it had four very relevant additional cogent and aggravating features. First, the judgment was made by the First Secretary of State and is therefore of the highest authority whilst the second factor is that it was a recent decision. Third, it was the result of an exhaustive consideration of evidence as is shown by the detailed and carefully reasoned report of the Inspector. Finally, the clear recommendation of the Inspector was that the occupation by the defendants should be ended as soon as possible notwithstanding the problems that this would cause for the defendants. These factors individually and cumulatively constitute powerful reasons for granting section 187B relief.
(v) Changes since the Report of the Inspector and the Decision of the First Secretary of State
- It is common ground that any new factors, which have arisen since the report of the Inspector and the decision of the First Secretary of State, are matters to which the court should give very careful attention before deciding whether to grant the relief sought. Mr Masters refers to many matters but these were effectively before the First Secretary of State in 2005. These factors included the views of other Inspectors dealing with the sites around Smithy Fen, (which are dealt with in paragraphs 14.45 of the Inspector's report), the absence of a quantitive assessment by the claimants in spite of C/194 and PPG3, (which is dealt with in paragraphs 7.41 and 7.43 of the Inspector's report), the vacant gypsy sites at Willingham and Meldreth, ( on which I have commented in paragraphs 35 to 40 above), the significant shortage of gypsy sites in the area, (which is dealt with in paragraphs 7.59 to 7.60 of the Inspectors report) the disruption that would be caused to the children of the represented defendants and their education as a result of eviction (which is dealt with in paragraph 7.56 of the Report), alleged lack of enquires before service of the first enforcement notice and the features of Chesterton Fen.
- Mr Masters frequently complained that the council had failed to comply with its obligations under Circular 1/94. This point was made in front of the Inspector (see paragraphs 7.61 and 7.62 of the Report). The Inspector took this these matters into account in making his recommendations, which was upheld by the First Secretary of State.
- The Inspector considered each of these matters with obvious care before he concluded that individually or cumulatively they were not sufficient to outweigh the harm caused by the activities of the defendants, which the council are now seeking to end by the present application.
- It was the view of the Inspector supported by the First Secretary of State that although the task of the defendants in finding alternative sites "clearly will not be easy" (paragraph 14.78 of his Report), this point had to be overridden because the case against granting planning permission is "very strong". In my view, the approach of the House of Lords in Porter (supra) and of the Court of Appeal in Davis (supra) to which I referred in paragraphs 26 to 28 mean that these matters cannot be reconsidered unless perhaps (what is not the case) the views previously expressed were obviously wrong.
- What is required of the defendants in order to show that the relief sought should not be granted in the face of the Inspector's conclusions in his report and his recommendations is to be able to point to a material change, which has occurred since the decision of the First Secretary of State and which is sufficiently important as to mean that there is now a real prospect of the defendants obtaining planning permission. The only new legal change is the 2006 Circular, which I will consider separately in Section V below.
- In reaching the conclusion that there have been no other changes, I have not overlooked the recent report which shows a need for between 170 and 220 gypsy sites. The Inspector took into account the facts that since 2002, the number of gypsy families on unauthorised pitches "has increased considerably" (paragraph 14.67) and the task for the defendants in finding alternative sites "will clearly not be easy" (paragraph 14.78). So even if the Inspector was not aware of the exact level of the demand for gypsy sites, he was aware first that it exceeded supply and second that the demand was increasing but he nevertheless refused to recommend even a grant of temporary permission. In my view, even if the Inspector had known of the exact level of the demand for gypsy sites, he would not have reached different decisions on the grant of planning permission essentially because this factor would not have "trumped" either individually or collectively the finding that the case against granting planning permission was "very strong".
(vi) The Illegality of the Acts of the Defendants
- Mr Masters contends that the defendants' behaviour "is not a flagrant breach of planning control". I agree with Mr Langham that this submission is incorrect. It is settled law that entering a site even as owners of it without planning permission in the way that the defendants did, constitutes a development in the form of stationing caravans without planning permission. Thus, it is conduct which is in breach of planning control and therefore unlawful with the result that the court has jurisdiction to make a section 187B order.
- The defendants cannot obtain any assistance in this regard from the 2006 Circular because Annex E of it states in the section entitled "Guidance to Gypsies and Travellers making Planning Applications" that:
"1.Members of the gypsy and traveller communities have the same rights and responsibilities within the planning system as members of other communities. Planning permission is normally required for change of use of land…
4. You should make your planning application and wait for planning consent before you go on the site. Entering a site without planning permission can be a breach of planning control and maybe subject to a series of enforcement actions..
5. Normally gypsy and traveller site developments require a full application"
- Therefore it follows that what the defendants did is specifically disapproved of and this provision was not included in previous circulars. It is not suggested that there is no evidence that this was an innocent error on the part of the defendants. Furthermore, an aggravating feature of this case is that the defendants have failed to comply with the enforcement notices within the times specified in them or at all. As I have explained the Inspector had recommended their continued operation and this recommendation had been upheld by the Secretary of State. They still remain in possession using the site for illegal purposes in spite of first all the decisions which have gone against them and second the enforcement notices.
- In South Buckinghamshire District Council v Porter (No.2) [2004] 1 WLR 1953, 1969c, Lord Brown of Eaton-Under-Heywood, giving the only reasoned speech of the Appellate Committee, explained that:
"53. A further point should be made. A development without planning permission is one thing: it is unlawful merely in the sense of being in breach of planning control. Where, however, as here, it has been persisted in for many years despite being enforced against that is a rather different matter: it is then properly to be characterised as criminal".
(vi) Judicial decisions
- Mr. Masters contend that a number of judicial comments and decisions support his contention that the claimants' application should be refused. He first relies on the comments to the position of gypsies of Steyn LJ in Guildford Borough Council v Smith [1994] JPL 734 that:
"Given that the defendants have done all in their power to seek an alternative site, and that compliance with the orders would not be within their reasonable capacity, it would be an affront to the civilised values of society to accede to the local authorities' invitation".
- This case was decided on an application for committal many years before the decision of the House of Lords in Porter (supra). In that case, the court was not faced, as I am, with an Inspector's recommendation and the Secretary of State's decision that temporary planning permission should be refused because of the serious adverse consequence which would follow from a grant of even temporary planning permission and to which I have already referred. Indeed, I do not believe that Steyn LJ was stating that a section 187 B order could not be made in any case where gypsies would have to move without having been able to find an alternative site in spite of all their endeavours. Indeed as I will explain in paragraph 79 below, the Strasbourg Court has explained in Chapman that a gypsy does not have an article 8 right to be provided with a home.
- It is noteworthy that Lord Steyn expressly agreed with Lord Bingham in Porter (supra at page 588 [59]) and with Simon Brown LJ's comment that a judge should not grant section 187B relief unless:
"he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites" ...page 587[53]).
- In any event, the correct position is now as stated in the recent authorities, which I quoted in paragraphs 28 to 30 above and which show that an order can be made even though the defendants have been unable to find an alternative site in spite of all their endeavours.
- A further submission of Mr. Masters was that the decision of the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 18 is a further reason why the claimants should not be granted the relief, which they now seek. The Inspector clearly considered the impact of this decision in the section of his report dealing with "human rights" before recommending the refusal of the applications for planning and temporary permission when he stated that "the public interest can only be safeguarded by refusals of permission and by upholding the enforcement notice" (paragraph 14.104). He concluded that paragraph by stating that "the dismissal of the appeals will not result in violation of the [defendants'] rights under Article 8".This recommendation was accepted and adopted by the First Secretary of State and it has not been the subject of a further challenge.
- It must not be forgotten that in Chapman itself, it was stated that:
" it is important to recall that the Article 8 right does not involve in itself a right to be provided with a home nor does any jurisprudence of the Court acknowledge such a right" (paragraph 99) and
"When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of the home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community."(paragraph 102).
- Another very recent decision strongly relied upon by Mr. Masters is that in South Bucks DC v Smith [2006] EWHC 281 (QB) in which a section 187B application was refused by David Clarke J in a case in which there had been an Inspector's report in 2001 and a first decision letter which had been quashed. No further inquiry was then held but the Secretary of State invited further written representations and he made a further decision in August 2003 but the Council did not hear of it until February 2004 and it did not start proceedings until 29 June 2005. Mr. Masters attaches great weight to that decision, which he submits is very helpful to his case.
- I do not find the Smith case of great assistance in deciding the present case as there were a number of factors in that case which are very different from those in the present case. First, the judge was not sure if the question of temporary planning permission had been considered sufficiently by the Inspector (paragraph 43) while the Secretary of State did not "expressly advert to this point in his refusal" (paragraph 43). In contrast, in the present case, both the Inspector and the First Secretary of State had carefully considered whether temporary permission should be granted before deciding that it was not appropriate for reasons explained by them
- Second, even if the caravans were removed in the Smith case, the defendants would still have been entitled to use the site for the business of scrap metal recovery and dealing with permanent structures on the site in the form of a stable bock and the tack room. So section 187 B relief would not have had the effect of removing the gypsies from the land. That is not the position on the present application.
- Third, in the Smith case, the judge concluded that "I cannot see the need to remove the caravans from the site as so urgent and pressing as to require it to proceed in advance of [the] final determination of the planning permission application" ( paragraph 47). In the present case, both the Inspector and the Secretary of State have concluded that temporary permission should be refused because of the overriding consideration of the damage which would be caused. As I have explained, the decision of the Inspector in the present case, which was upheld by the First Secretary of State was that the case against the grant of planning permission was "very strong" and "the objections to the development are so compelling that this argument [that these site could eventually be selected as part of a district wide site identification] that this argument is wholly without merit".
- Fourth, a significant difference between the Smith case and the present case is that the judge in that case was entitled if not obliged to find in the light of the history of that case that there was no urgency shown by the Council in that case. After all in that case, the Council's decision to seek section 187 B relief was taken almost 18 months after it had found out about the Secretary of State's decision and almost 4 years after consideration of the planning merits by the Inspector. In the present case in sharp contrast, the claimants moved speedily as the deadline in the third enforcement notice expired in June 2005 and the present proceeding s were only started in July 2005.
- Fifth in Smith, the judge was not called on to consider the provisions in paragraph 109 of C11/95, which provides that temporary planning permission is not appropriate if "the damage to the amenity cannot be accepted" but in the present case this provision is of critical significance in the light of the recommendations of the Inspector to which I have referred in section IV above and which were followed by the First Secretary of State. There were no comparable findings in the Smith case.
- Another case relied on by Mr. Masters was the decision of the Court of Appeal in West Glamorgan County Council v Rafferty [1987] 1 WLR 457 but that this related to a totally different regime from that in C1/2006 . The claimants in the present case are not under a statutory duty in any way similar to that imposed on the County Council in Rafferty's case.
- I do not agree with Mr. Masters that he can derive any assistance from the decision in First Secretary of State v Chichester District Council [2004] EWCA Civ 1248 as this case concerned the construction of an Inspector's decision letter
- As I explained in paragraph 13 above, the land in this case is not "green belt" land while in the cases to which I have referred the land concerned was "green belt" land. Although Mr Masters referred to some other cases, they are not relevant as they did not deal with the proper approach to section 187 relief after the Porter decision especially in a case in which an Inspector had recommended that temporary permission should not be granted because of the serious adverse planning consequences, which would follow from a grant of any type of planning permission.
(vii) The report on Cambridge Sub region Traveller Needs Assessment
- Mr. Master attaches great weight to this assessment, which examined the position at 26 November 2005 and was described as being "provisional pending discussions with client on methodology and assumptions". The report, which repeatedly stressed that it is based on many assumptions, shows an unsatisfied demand for gypsy sites in not only the claimant's area but also in Cambridgeshire.
- This assessment is consistent with the approach of the Inspector, who was aware of the great shortage of suitable gypsy sites in not only the claimants' area but also in Cambridgeshire and that the defendants would have no site to which to go if they did not obtain permission. The First Secretary of State was also fully aware of these points.
- Nevertheless the planning considerations meant that neither was prepared even to give temporary permission for even one site or to extend the period for complying with the enforcement notice. In short the report does not reveal any information, which was not known in sufficiently general form to the Inspector, the First Secretary of State or the claimants about the shortage of sites for gypsies
- It is convenient at this stage to consider whether the claimants should obtain the relief claimed by them because if it is clear at this stage that they are not entitled to the relief, the 2006 Circular issue does not arise.
- My starting point is to take as decided the planning merits of the case, which I have set out in paragraphs 19 to 24 above. The Inspector considered that the case against the grant of planning permission was "very strong" and he explained that the effect of granting permission would be "further loss of open land", a much higher level of occupation and the consequent additional traffic a detrimental effect on highway safety and the amenity of residents.
- These conclusions have added potency first because they were recently made by an Inspector, second because they were upheld by the First Secretary of State, third they have not been the subject of any form of challenge in the courts and finally because they were the subject of recent consideration by the claimants before deciding to commence the present application.
- Against this I bear in mind, the lack of any alternative sites for the defendants and the fact that they are the owners of the land. I also take into account the facts that the defendants have been living on the site for several years and will be unable to find an alternative site. As I have explained there are health and educational considerations which I have to take into consideration in the defendant's favour. As I have explained, the Inspector, the First Secretary of State and the DCSC of the claimants were all very conscious of these points but they concluded after considering them that they fell a long way short of outweighing what the Inspector described as the "very strong" case against planning permission.
- Nevertheless I have come to the same conclusion that the personal considerations of the defendants do not override the powerful conclusions that the defendants' use of the land must cease, and that (subject to the issue of temporary planning permission to which I will shortly turn), the
claimants are entitled to the relief sought. I am fortified in coming to that conclusion by factors , which have to be considered in the light of Lord Bingham's comment in Porter, which I quoted in a paragraph 28 and which merits repeating:
"38. ..When application is made to the court under section 187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and nonetheless resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests…."
- In this case for the reasons which I have sought to explain, the claimants clearly had regard to the personal circumstances of the defendants and the hardship an injunction would cause in deciding whether to bring the present application . This factor would in Lord Bingham's words "weigh heavily in favour of granting relief" but the case for the claimants is substantially stronger because the Inspector and the First Secretary of State considered the personal circumstances of the defendants and the hardship that would be caused if temporary permission was refused and the enforcement notices remained in force before they both refused to grant temporary permission to the defendants or to extend the time for complying with the third enforcement notice. The position of the defendants is not helped by their failure to comply with the enforcement notices.
- Therefore the claimants have a very strong claim for the relief sought unless temporary permission should be given because of the terms of the 2006 Circular and that is the issue to which I now turn.
V. The 2006 Circular Point and the Application for Temporary Planning Permission
(I) Introduction
- Mr Masters attaches great importance to the 2006 Circular, which he contends constitutes a new and radically different approach to the treatment of gypsies by imposing additional duties and functions on local authorities. He submits that the 2006 Circular was necessary because of the failure of local authorities to take heed of government advice since 1994 with the result that it has now been considered necessary to impose positive obligations on local authorities. Thus, Mr Masters contends that no order should be made in this case because the defendants have a legitimate prospect of success in a fresh planning application and that they are likely to obtain at least temporary planning permission.
- In support of his contentions, Mr. Masters explains that the defendants will undertake first to make fresh planning applications within 56 days for planning consent to the claimants, second if that application is refused, they will then use their best endeavours to appeal "swiftly" to the Secretary of State and third that they will agree to abide by the final determination of that appeal and if required to vacate plots 1-6 within a reasonable time from the date of such determination.
- Mr Langham contends that there is nothing in the 2006 Circular, which shows that these defendants "may yet succeed" on a fresh planning application essentially because the 2006 Circular makes no difference at all to the planning judgments, which have been made and which have been upheld about the severe harm to the landscape and amenities caused by the present development. He stresses that the 2006 Circular does not suggest or require that gypsy sites should be permitted in locations where the defendants have caused the level of injury found by the Inspector. He submits that the thrust of the 2006 Circular is that local planning authorities must have policies, which advocate or allow adequate numbers of sites in suitable locations. It therefore becomes necessary to consider in some more detail the effect of the 2006 Circular.
(ii) The 2006 Circular
- The need for the new guidance is explained in the 2006 Circular as follows:
"3. A new Circular is necessary because evidence shows that the advice set out in Circular 1/94 has failed to deliver adequate sites for gypsies and travellers in many areas of England over the last 10 years. Since the issue of Circular 1/94, and the repeal of local authorities' duty to provide gypsy and traveller sites there have been more applications for private and traveller sites, but this has not resulted in the necessary increase in provision."
103 It came into effect immediately on its issue in early February 2006 just before the initial hearing of the present application. The main intentions behind the 2006 guidance were summarised in the following way at paragraph 12:
"Its main intentions are:
a) to create and support sustainable, respectful, and inclusive communities where gypsies and travellers have fair access to suitable accommodation, education, health and welfare provision; where there is mutual respect and consideration between all communities for the rights and responsibilities of each community and individual; and where there is respect between individuals and communities towards the environments in which they live and work;
b) to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular;
c) to increase significantly the number of gypsy and traveller sites in appropriate locations with planning applications in order to address under-provision over the next 3 - 5 years;
d) to recognise, protect and facilitate the traditional travelling way of life of gypsies and travellers, whilst respecting the interests of the settled community;
e) to underline the importance of assessing needs at regional and sub-regional level and for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively;
f) to identify and make provision for the resultant land and accommodation requirements;
g) to ensure that DPDs [Development Plan Documents] include fair, realistic and inclusive policies and to ensure identified need is dealt with fairly and effectively;
h) to promote more private gypsy and traveller site provision in appropriate locations through the planning system, while recognising that there will always be those who cannot provide their own sites; and
i) to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to."
- There is in the 2006 circular a description of the context of the needs of gypsies and travellers, and how the planning process operates, introducing a process of assessing the need for accommodation for gypsies and travellers (Gypsy and Traveller Accommodation Assessments, or GTAAs), so as to inform and influence Regional Spatial Strategies ("RSSs") and, in turn, Development Plan Documents ("DPDs") at the sub-regional level.
- Paragraph 23 of the 2006 Circular provides that the RSS should identify the number of pitches required (but not their location) for each local planning authority. Paragraph 30 states that the number of pitches set out in the RSS must be translated into specific site allocations in one of the local planning authority's DPDs that form part of the LDF.
- Paragraphs 32 and 33 of the 2006 Circular provide that:
"Planning policies that rule out, or place undue constraints on the development of gypsy and traveller sites should not be included in RSSs or DPDs. The Government has powers to intervene in the plan-making process where it considers that the constraints being proposed by local authorities are too great or have been inadequately justified. This will include where a local planning authority does not adequately address gypsy and traveller site provision in its area.
Local authorities must allocate sufficient sites for gypsies and travellers, in terms of the number of pitches required by the RSS, in site allocations DPSs. A requirement of the Planning Act 2004 is that DPDs must be in general conformity with the RSS. Criteria must not be used as an alternative to site allocations in DPDs where there is an identified need for pitches. Local planning authorities will need to demonstrate that sites are suitable, and that there is a realistic likelihood that specific sites allocated in DPDs will be made available for that purpose. DPDs will need to explain how the land required will be made available for a gypsy and traveller site, and timescales for provision."
- Paragraph 35 of the 2006 Circular lists a number of ways in which local authorities can identify specific sites and make land available. These include the use of compulsory purchase powers to acquire an appropriate site and cooperation between neighbouring authorities, possibly involving joint DPDs.
- At paragraph 37, the 2006 Circular notes that all DPDs are subject to independent examination and that any changes made by an Inspector must be incorporated by local planning authorities. At paragraph 38 it is noted that an Inspector may recommend that the DPD is altered to include additional sites.
- I agree with Mr. Masters that the 2006 Circular contains important new provisions about temporary planning permission, which are that:
"41. In advance of the consideration of new GTAAs at a regional level by the RPB, translated into pitch numbers for DPDs, other means of assessment of need will be necessary. RPBs will need to consider whether there is sufficiently robust information on which to establish district level pitch numbers. They will need to work closely with local authorities who will have access to a range of information on gypsy and traveller families in their area. Where it is not possible to allocate pitch numbers comprehensively in the current round of RSS revisions, RPBs will need to consider interim arrangements. This should include a clear statement as to the regional context including;
a) priority attached to addressing immediate need and timescale for doing so;
b) extent of existing provision
c) identifying those parts of the region with high numbers of unauthorised sites;
d) an interim estimate of the additional pitch requirements at regional level;
(e) arrangements for putting in place district level pitch requirements (e.g. need for further research, engaging local authorities timetable for any single issue review).
42. This will be important in guiding local planning authorities as they prepare LDDs and ensuring that the RSS is well placed to deliver the regional framework in future. RPBs will need to work closely with local authorities to agree and establish transitional arrangements. A first step is to agree the priority attached to gypsy and traveller provision across the region and how best to address any immediate accommodation needs for gypsies and travellers.
43. Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTAAs. The early data available from the GTAA will be one of a range of information sources that local authorities should consider when assessing the required level of provision to translate into site allocations in a DPD, and RPBs should consider when allocating pitch numbers to each district. Paragraph 31 above refers to the core strategy setting out criteria in advance of site allocations in a DPD. Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.
44. Other sources of information could include;
(a) a continuous assessment of incidents of unauthorised encampments, both short and longer-term;
(b) the numbers and outcomes of planning applications and appeals;
(c) levels of occupancy, plot turnover and waiting lists for public authorised sites;
(d) the status of existing authorised private sites, including those which are occupied and those subject to temporary or personal planning permissions;
And
(e) the twice-yearly Caravan Count undertaken on behalf of ODPM, which gives a picture of numbers and historic trends.
- Of particular relevance to the present case is what is said at paragraphs 45 and 46 of the 2006 Circular about temporary planning permissions:
"45. Advice on the use of temporary permissions is contained in paragraphs 108 - 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.
46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay."
- The 2006 Guidance is conscious of the importance of planning control as it provides in paragraph 67 that:
"67. The Government's aim is to ensure that planning policies and controls are respected by all sections of the community and that where breaches occur effective enforcement action is taken."
- It is noteworthy that paragraph 70 of the 2006 Circular provides that:
"The obligation on public authorities to act compatibly with Convention rights does not give gypsies and travellers a right to establish sites in contravention of planning control."
- Mr Masters' submission is that this guidance marks a clear and radical change in emphasis, explicitly designed to redress the inadequacy of the provision which has hitherto been made for gypsies. He says that, specifically, the 2006 Circular improves substantially the prospect that, even if the relevant site is not considered to be suitable for a permanent planning permission, a temporary planning permission will be granted as the outcome of the pending application entitling the Defendants to use the site for, say, three years, so as to bridge the gap in time before an adequate number of permanent sites becomes available in South Cambridgeshire or in the area of the neighbouring local authorities.
- He relies on two further provisions in the 2006 Circular, which state that:
"54. Sites on the outskirts of built-up areas may be appropriate. Sites may also be found in rural or semi-rural settings. Rural settings, where not subject to planning constraints, are acceptable in principle. In assessing the suitability of such sites, local authorities should be realistic about the availability, or likely availability, of alternatives to the car in assessing local services. Sites should respect the scale of, and not dominate the nearest settled community. They should also avoid placing an undue pressure on the local infrastructure.
64. Issues of sustainability are important and should not only be considered in terms of transport mode and distances from services. Such consideration should include;
a) the promotion of peaceful and integrated co-existence between the site and the local community;
b) the wider benefits of easier access to GP and other health services;
c) children attending school on a regular basis;
d) the provision of a settled base that reduces the need for long-distance travelling and possible environmental damage caused by unauthorised encampment; and,
e) not locating sites in areas at high risk of flooding, including functional floodplains, given the particular vulnerability of caravans".
- Mr Langham contended that even with the 2006 Guidance, attention still has to be given in the planning process to normal planning considerations, even in relation to a temporary permission which might last for two or three years. He stressed that planning merits remain relevant, and remain a matter for the planning process but that the courts could form a view as to the likelihood that planning permission would be granted on a particular application or appeal.
- The Defendants' case is that the 2006 Circular means that there is a strong chance that they will be successful in making a new application for temporary permission but in my view it is necessary to put the 2006 Circular into perspective.
- Lloyd LJ explained (with his emphasis added) in the Price case when giving a judgment with which Ward and Latham LJJ agreed that
"36. The new circular clearly does improve the Defendants' case on the planning appeal. Previously, unmet need was a factor to which weight had to be given. Now the planning authorities are directed "to give substantial weight to the unmet need in considering whether a temporary planning permission is justified
37.The success of the application, at least to the extent of a temporary permission, is therefore more likely than it would otherwise have been. But it does not seem to me that it is possible to assume that it is more likely to
succeed, even to that extent, than to fail" .
- The facts of Price are so different from the present case that the actual decision in that case does not help me. Mr. Masters offered to provide me with some statistics which showed how Inspectors had applied the 2006 Circular but such material would not help me in resolving the legal issues in this case not least because the facts of these cases are unlikely to be the same as those prevailing in the present case.
(iii) The approach to a new planning application
- On the issue of the temporary planning permission, the starting point must be the exact terms used in Porter (supra) in considering when the prospects of a future planning permission are discussed and they were (with my emphasis added) that:
"… the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case" (Simon Brown LJ at paragraph 40)
"Nor need the court refuse to consider… the possibility that a pending or prospective application for planning permission may succeed since there may be material to suggest that a party previously unsuccessful may yet succeed …" (Lord Bingham at paragraph 30)
"If the court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the Defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation had become clarified. But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction without regard to the merits of the planning decisions" (Lord Scott at paragraph 100).
- I agree with Mr. Langham that a "real prospect" of success is required before the adjournment/suspension route could be appropriate so as to militate against the claimants being entitled to the relief now claimed. The 'possibility' of success is merely a consideration that the court "need [not] refuse to consider" in the sense that it is something that merits consideration.
- In my view, these new provisions mean that local planning authorities ought now to be less reluctant to grant temporary planning permission than they would have been previously. This is an important factor to bear in mind, as I will do, when considering as I have to whether to grant section 187 B relief. Nevertheless, these new provisions do not enable me to conclude in this case that there is a "real prospect of success" because the defendants are putting forward essentially the same case in support of their claim for temporary planning permission as had been recently decisively rejected by the Inspector for cogent and persuasive reasons in his report and subsequently by the First Secretary of State.
- Second, this was a case in which there were important findings made by the Inspector upheld by the First Secretary of State about the continued use of the site by the defendants. As I have already explained, the recommendation of the Inspector in the present case which was upheld by the First Secretary of State was that the case against the grant of planning permission was "very strong". They also both decided that temporary planning permission had to be refused because (with my emphasis added):
"the objections to the development are so compelling that this argument [that these site could eventually be selected as part of a district wide site identification] is wholly without merit".
He added (again with my emphasis added) that,
"in view of the considerable planning objections to this developments and the likely period for which the use would continue I do not consider that temporary planning permission should be granted either for a single plot or collectively".
- These conclusions show the strength of the case against the defendants obtaining temporary planning permission together with the need for them to move away from their present location and to cease their activities there.
- Third, there is nothing in the 2006 Circular which alters the critically important planning judgment made in this case by the Inspector and the upheld by the First Secretary of State about the severe harm to the landscape and amenity as well as the consequent breach of development plan and policy HG 23 caused by the present development. These specialist decision makers had considered this to be overwhelming and decisive in spite of the countervailing factors such as first that there had been a lack of qualitative assessment, second that there were no immediate available alternatives, third that the defendants and their families would have the very difficult task of having to find alternative homes and fourth that the Council was assessing need and trying to find alternative sites so that in the fullness of time there would be more facilities available for gypsies. In this respect, it must not be forgotten that the Inspector and the First Secretary of State made potent conclusions not merely that they would not permit planning permission for one plot but also that no temporary planning permission was to be granted.
- Fourth, there is nothing in the 2006 circular which requires or suggests that gypsy sites should be permitted in places where there is the level of injury to the amenities found by the Inspector. It is true that this circular requires local planning authorities to allocate or allow for an adequate number of sites in suitable locations but it is a feature of the new scheme that the these authorities would be able to enforce their policies so as to take effective enforcement action against unlawful sites in unsuitable locations. An important feature of the 2006 circular is that it gives advice and guidance to local planning authorities on how they should formulate their planning policies and then grant or refuse permission.
- Fifth, the existing guidance in C11/95 on temporary planning permissions is still in force and, as I have explained is specifically referred to in paragraph 45 of the 2006 Circular and it provides that an activity which causes unacceptable harm to an amenity should not be allowed even on a temporary basis. This remains the position even though, as I have explained it is now more likely that a temporary planning permission would be granted for a site, which would not eventually obtain permanent planning permission. The grant of temporary permission in this case would lead to unacceptable harm to an amenity in the light of the recommendations of the Inspector to which I have already referred. This recommendation of the Inspector upheld by the First Secretary of State, which has not been challenged by the defendants, would constitute an additional reason why temporary planning permission will not or at least is highly unlikely to be granted in this case.
- Reverting to the tests set out in Porter to which I referred in paragraph 119, above it is not possible in this case for the defendants to show a "real prospect" of success, which is required before the adjournment/suspension route could be appropriate so as to militate against the claimants being entitled to the relief now claimed. The 'possibility' of success is merely a consideration that the court cannot ignore in the sense that it is something that merits consideration but for the reason which I have sought to explain , the possibility of success is so low as not to justify the grant of adjournment or suspension of an order. There are, as I have explained formidable obstacles to the grant of temporary planning permission and thus I reject the contentions of Mr. Masters that I should adjourn this application or suspend an order pending determination of a further planning application.
- Mr. Masters also sought to rely on a report dated 27 March 2006 issued by Mr. David Baldock, who is the same Inspector, whose report and recommendations the claimants are seeking to enforce in the present action. This evidence was put in after the hearing and so I must regard it as inadmissible, but in any event it does not assist the defendant. In this recent decision the Inspector relied on the 2006 Circular to grant temporary planning permission for a period of three years and Mr. Masters contended that this shows that temporary planning permission is likely to be granted in the present case. Not surprisingly the Inspector found that the advice in paragraphs 41to 46 of the new Circular to be very relevant as I do.
- I however am unable to agree that this recent report of the Inspector means that temporary permission is likely to or even might well be granted in the present case because in this recent decision unlike the case with which I am now concerned, the Inspector had not concluded that there was such a strong case against the grant of planning permission.
- In my opinion, there are formidable obstacles to the grant of planning permission, temporary or otherwise under paragraph 45 and 46 or any provision of C1/2006. So applying what was said in Porter and which I have already quoted, I conclude that the prospects of the defendants or any of them obtaining temporary planning permission are so low that I can and must disregard them. There prospects fail to reach the threshold referred to in Porter and which I have already set out.
VI .Conclusions
- My task is to look at all relevant matters and not merely the 2006 Circular to determine whether taking account of all relevant factors it would be proportionate to grant section 187 relief. When I stand back and perform this task. I come to the clear conclusion that this is an appropriate case in which to grant such relief. The planning considerations and the other factors set out in the report of the Inspector and the decision of the Secretary of State above are powerful factors when considered with the low prospects of the defendants obtaining temporary planning permission lead me to the conclusion that I am obliged in the light of the statements in Porter and Davis to which I have already referred to grant the relief claimed, subject to the submissions of counsel.
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