Ann Medhurst v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 2011 |
| Neutral Citation | [2011] EWHC 3576 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 December 2011 |
| Docket Number | CO/7132/2010 |
[2011] EWHC 3576 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Clive Lewis Qc
(Sitting as an additional High Court Judge)
CO/7132/2010
Mr M Willers (instructed by Davies Gore Lomax Solicitors) appeared on behalf of the Claimant
Miss S-J Davies (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is an application by Mrs Ann Medhurst made under Section 288 of the Town and Country Planning Act 1990, seeking to quash a decision of a Planning Inspector. The Inspector dismissed an appeal against the refusal of planning permission for change of use of land from use for grazing to use for stationing one mobile home and four touring caravans with associated hard standing, connection to sewers and conversion of two stables to utility rooms.
By the time of the Inquiry, Mrs Medhurst was seeking temporary planning permission for 2 years, as appears from the proposed conditions set out in paragraph 9 of the statement of common ground for the Inquiry and paragraph 2 of the Inspector's decision. The site lies in the Green Belt, where there is a general presumption against inappropriate development.
The Inspector considered that the appeal raised two main issues, as appears from paragraphs 4 and 5 of his decision, where he said this:
"The first is whether the appellant and her grown up family fall within the definition of 'Gypsies and Travellers', for planning purposes. If such status is found it is necessary to consider whether permission is justified on the basis of the appellant and her family's need for a site within the Borough. The Council acknowledge that there is an unmet need for Gypsy sites in Tonbridge and Malling Borough.
5. The second issue is whether the harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by any other considerations. From the evidence at the Inquiry the following considerations are material to my decision;
(i) The impact of the development on openness of the Green Belt and the appearance of the locality.
(ii) The personal circumstances of the appellant and her family."
The Inspector dealt first with the question of Gypsy and Traveller status. He referred to the statutory definition of Gypsies and noted that, for the purposes of Circular 01/2006: Planning for Gypsy and Traveller Sites, Gypsies and Travellers means:
"persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family's or dependants' educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling show people or circus people travelling together as such."
That definition is taken from paragraph 15 of Circular 01/2006 and, as the Inspector noted in paragraph 6 of his decision, whether a person "falls within the definition is a matter of fact and degree to be applied to their way of life at the time of the determination of the appeal".
The Inspector then considered the evidence on this issue. He noted amongst other things that the report to the Planning Authority Committee referred to Mrs Medhurst having lived in a house in Ingoldsby Road, which she had sold in 2007 to help finance a purchase of land at Buckles Lane, which was a travelling showman's site. She lived there with her partner for some 3 to 4 years and then after that stayed with friends and her sister. The Inspector noted that the report referred to the fact that Mrs Medhurst's sons were now independent and, before their marriages and acquiring their own houses, had used their mother's house as a base for their work, mainly involving tree and garden maintenance as well as jet washing.
The Inspector then recounts the evidence given by Mrs Medhurst at the Inquiry. She said that she was 52 and had been born into a Romany Gypsy family. She had lived in a caravan on various sites until moving in her teens into a council house. The decision then describes her marriage and her move into a council house in Ingoldsby Road. She had three sons: George aged 34; Michael, aged 29; and Danny, aged 18. George and Michael had wives and children who lived in their respective family homes but the sons did not live with their wives. She had a daughter, Charmaine, who was aged 19, who had one child and was expecting a second. Mrs Medhurst said that she travelled daily to her mobile hot food business, which was operated on an industrial estate in the Dagenham Docks area. In cross-examination, she said she had also travelled to festivals but not to Gypsy events as part of her catering business, but now intended to give up the business owing to a serious back condition.
At paragraph 10, the Inspector recorded, amongst other things, that in cross-examination Mrs Medhurst acknowledged that she had lived in a council house for 26 years, and that her children had all attended local school until they were aged about 14. She dealt with her sons' families' accommodation and that of her daughter. She said the boys had travelled during the summer holidays with other members of the extended family. Mrs Medhurst also said that she considered the wives and children would rejoin their husbands and fathers if suitable accommodation was available on the appeal site, but her sons would be unlikely to return to their wives should planning permission be refused as they did not like living in houses.
At paragraphs 11 to 14, the Inspector set out his conclusions on the question of Gypsy and Traveller status in these terms:
"11. The question is whether the evidence points to Mrs Medhurst and her family having a nomadic lifestyle sufficient to constitute a Gypsy or Traveller for planning purposes. In my view, there is little evidence that Mrs Medhurst has followed a lifestyle that involves travelling for an economic purpose. She has spent most of her adult life in a permanent dwelling. Her recent work has primarily involved commuting to Dagenham docks. Although she had stayed at Buckles Lane with a partner, she still retained her house in Ingoldsby Road until late 2007.
12. None of the adult children of the appellant gave evidence at the Inquiry. All 3 older children have their own homes. No evidence has been submitted to suggest that the landscape work or jet washing undertaken by George and Michael involves a travelling lifestyle although it is said that they do some travelling during the summer months and also attend gypsy gatherings in connection with their business interest in horses. They have permanent homes and children and there was a suggestion that the relationships can be resumed if planning permission is granted for the appeal proposal. Although it may have been an unfair question for The Council, to put to Mrs Medhurst, I attach little weight to her response that the present estrangement of her sons from their spouses relates to their dislike of living in permanent houses.
13. It appears from the evidence that whilst Mrs Medhurst and her family have Gypsy ancestry, there is little in their housing or employment history to indicate travelling as a way of life. I consider the travelling undertaken by the boys during school holidays to be no different to that undertaken by many settled families. A mere aspiration to follow a gypsy lifestyle or nomadic habit of life is not, in my view, sufficient to make a person a gypsy for planning purposes. My finding on the evidence is that while the appellant or family members may on occasions have travelled for work purposes for some periods during the last few years, they have not an established nomadic lifestyle sufficient to fall within the Circular 01/2006 definition of "Gypsies and Travellers".
14. My conclusion on this issue clearly undermines the appellant's case that a temporary permission for 2 years is justified on the basis that the proposed Gypsy and Traveller facility at Coldharbour, Aylesford, may be available at the end of that period. I am also aware that the Kent CC Gypsy Liaison Officer has advised that the Medhurst family are not on the waiting list for a Council site."
The Inspector next went on to deal with the Green Belt and the impact of the development on the openness of the Green Belt and the character and appearance of the locality. He noted that the appeal site lay within the Metropolitan Green Belt and that the relevant local policy restated the presumption in national policy, that is in PPG2, against inappropriate development unless very special circumstances could be shown. The Inspector considered that the stationing of the mobile home, touring caravans and parking of vehicles conflicted with the purpose of safeguarding the Green Belt from encroachment.
I should say here that the application for planning permission was a retrospective application. The appellant had already moved onto the appeal site with her mobile home without first having obtained planning permission. So the Inspector could actually see what the development looked like.
The Inspector said that he saw the site was particularly conspicuous when viewed from the public footpaths and highway to the south, where it appeared as an isolated urban feature extending into open land and said in paragraph 18 of his decision that:
"I consider the development to be an intrusive and alien feature in the landscape which is harmful to the character and appearance of the countryside in this part of the...
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