Delaney v Secretary of State for Communities and Local Government & Basildon Borough Council (First Respondent Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Goldring :,Lord Justice Aikens,Lord Justice McCombe |
| Judgment Date | 23 May 2013 |
| Neutral Citation | [2013] EWCA Civ 585 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/1950 |
| Date | 23 May 2013 |
[2013] EWCA Civ 585
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH (ADMINISTRATIVE COURT)
MR JUSTICE HOLMAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Goldring
Lord Justice Aikens
Lord Justice Mccombe
Case No: C1/2012/1950
Stephen Cottle (instructed by Community Law Partnership) for the Appellant
Stephen Whale (instructed by the Treasury Solicitor) for the First Respondent and
Melissa Murphy (instructed by Basildon Borough Council Legal Department) for the Second Respondent
Hearing date: 13 May 2013
Approved Judgment
Introduction
Since October 2007 the appellant, who has traveller status for planning purposes, has been living on a site which he owns at Highview, Hovefields Drive, Wickford in Essex. It is Green Belt land. The site was previously owned by someone called Mrs. Casey. She and her family were in 2006 granted temporary personal planning permission to occupy the site. She left in 2007. That year the applicant bought the site and moved in with his family. His application for retrospective permission was refused by what is now the Basildon Borough Council in June 2010. By a Decision Letter of 1 February 2011 the Inspector dismissed the appellant's appeal. He refused both permanent and temporary planning permission. On 23 April 2012 Holman J rejected his application under section 288(5)(b) of the Town and Country Planning Act 1990 to quash the Inspector's decision. Before the judge the only subject of the appeal was the refusal of a grant of temporary permission; the refusal of permanent permission was not challenged.
The ground of appeal
Jackson LJ granted permission on one ground only. Its essential point can be encapsulated in the following way: whether, contrary to its statutory duty to do so, the failure of the Council to carry out an assessment of the accommodation needs of gypsies and travellers residing in its district, and to prepare a strategy in respect of the meeting of that need, was a material factor in the appellant's favour when considering whether or not to grant temporary planning permission; whether, having accepted a breach of statutory duty and found an unmet need for gypsy and traveller site provision in the area, the Inspector placed any or sufficient weight on the absence of a strategy in the light of paragraphs 45 and 46 of Circular 1/2006; finally, whether Holman J's conclusions in respect of these matters were correct.
The legal framework
By section 8(1) of the Housing Act 1985:
"Every local housing authority shall consider housing conditions in their district and the needs of the district with respect to the provision of further housing accommodation."
By section 87 of the Local Government Act 2003 ("Housing strategies and statements"):
"The appropriate person [the Secretary of State] may—
(a) require a local housing authority to have a strategy in respect of such matters relating to housing as [he]…may specify…"
Subsection (4) states that housing "includes accommodation needs for gypsies and travellers within the meaning of section 225 of the Housing Act 2004."
Section 225 of the Housing Act 2004 provides:
"(1) Every local housing authority must, when undertaking a review of housing needs in their local district under section 8 of the Housing Act 1985…carry out an assessment of the accommodation needs of gypsies and travellers residing in or resorting to their district.
(2) Subsection (3) applies where a local housing authority are required under section 87 of the Local Government Act 2003…to prepare a strategy in respect of the meeting of such accommodation needs.
(3) The local authority who are that local housing authority must take the strategy into account in exercising their functions…
…(5) In this section…
(b) "accommodation needs" includes needs with respect to the provision of sites on which caravans can be stationed…"
By section 72 of the Town and Country Planning Act planning permission may be granted for a limited period.
Circular 11/95 concerns the "Use of conditions in planning permission." Paragraphs 108–113 deal with "Temporary Permissions." Paragraph 110 states:
"Where a proposal relates to a building or use which the applicant is expected to…continue only for a limited period…because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified…"
Circular 1/2006 emanated from the Office of the Deputy Prime Minister on 2 February 2006. It is titled "Planning for Gypsy and Traveller Caravan Sites." It applied in the present case. Paragraph 12 stated that its "main intentions" were, among other things:
"a)…to reduce the number of unauthorised encampments…and to make enforcement more effective…
b)…for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively…
e)…to identify and make provision for the resultant land and accommodation requirements…
f)…to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to…
i) to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to."
The circular deals with development plan documents ("DPDs"). Paragraphs 45 and 46 provide:
"45. Advice on the use of temporary permissions is contained in paragraphs 108–113 of Circular 11/95…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 an 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 allocation DPDs [Development Plan Document]. 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."
Paragraph 49 refers to the general presumption against inappropriate development within Green Belts. It suggests that pressure for development of sites in the Green Belt may be avoided if there are sufficient sites in the area.
Finally, by section 288(5)(b) of the Town and Country Planning Act 1990, the High Court may quash an inspector's decision "…if satisfied that…the order or action in question is not within the powers of this Act, or…the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to [the order or action in question]…"
The Inspector's decision
In paragraph 7, the Inspector set out the main issues. He stated that the site lay within the Green Belt; that:
"…the proposal is inappropriate development in the Green Belt, a matter upon which the parties concur."
In paragraph 14, under the heading "Green Belt Openness and Purposes," he concluded that:
"…the proposal leads to loss of Green Belt openness and undermines three of the purposes of including land in the Green Belt. On its own the site's harm to the Green Belt could be seen as small scale. However, in the wider context of the purposes of Green Belt designation and particular vulnerability of the area, the harm is substantial."
He dealt with "other considerations" in paragraph 21 and following. As he put it:
"The other considerations to be taken into account are principally (i) the need for provision of gypsy sites; ii) the appellants need for accommodation and alternative options; and (iii) the other personal circumstances of the appellant and his dependants."
He dealt with "The Need for and Provision of Gypsy Sites" in detail. He said (in paragraph 22) that:
"…Policy H3 within the single issue revision to the RSS [Regional Spatial Strategy] contains minimum targets for the provision of additional gypsy pitches for the period 2006–2011. For Basildon District the requirement is for 62 additional pitches for the period. The provision was based on the need arising from natural growth, overcrowding on existing authorised pitches and from those currently resident on sites without planning permission.
23….[the Council] remains of the view that the large number of unauthorised sites in the District is a reflection of the availability of small individually-owned plots of relatively cheap Green Belt land and should not be used as a means of assessing need.
24…Policy H3 remains the only development plan policy basis for need and still carries weight in determining the provision that ought to be made for gypsy pitches. Whilst I note the basis for the Council's dissatisfaction with the assessment of need and that the Green Belt is a significant environmental constraint in the District, the RSS and the supporting Gypsy and Traveller Accommodation Assessments…are the best available evidence before me for assessing need…the figures to an extent reflect the Council's duty to meet locally generated need for sites arising from those families residing and resorting to the area on the Basildon public site or the authorised private sites in the District. In addition further provision will need to be made to meet the need beyond 2011.
25. The Council has not sought to progress any Development Plan Document (DPD) or...
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