Doncaster Metropolitan Borough Council v Secretary of State for Communities and Local Government (First Defendant) AB (Second Defendant)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Gilbart
Judgment Date06 Oct 2016
Neutral Citation[2016] EWHC 2876 (Admin)
Docket NumberCO/294/2016

[2016] EWHC 2876 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Gilbart

CO/294/2016

CO/73/2016

Between:
Doncaster Metropolitan Borough Council
Claimant
and
Secretary of State for Communities and Local Government
First Defendant

and

AB
Second Defendant

Miss S Kabir Sheikh QC and Mr N Westaway (instructed by Doncaster MBC) appeared on behalf of the Claimant

Mr R Kimblin QC (instructed by Government Legal Department) appeared on behalf of the First Defendant

Mr M Willers QC and Miss J Compton (instructed by Community Law Partnership) appeared on behalf of the Second Defendant

Mr Justice Gilbart
1

Given the fact that some of the matters which must be addressed refer to the medical history of the Second Defendant and one of her infant grandchildren, I direct that she is to be referred to, and only referred to, as AB. Other members of the family will also be referred to by initials. I have also referred to the site's location in only general terms so as to avoid identification.

2

Background and Decision Letter in issue, and nature of the proceedings

3

This matter relates to the occupation by the Second Defendant and her family of land at an address in the Borough of Doncaster for the siting of residential caravans with ancillary development (hardstanding, a utility room and a septic tank). It has been used for that purpose since 2002. Although unlawful at first, in 2005 a temporary planning permission was granted for the siting of four caravans and a utility block. That was limited by condition to three years' duration. In 2010 Doncaster (as I shall refer to the Claimant) granted permission for the siting of four caravans, together with ancillary development including the utility block. That was limited to a three year period, and occupation was restricted by condition to the Second Defendant and her immediate family. The relevant condition required that the use cease after three years and that all caravans, structures and materials brought onto the site be removed. In 2014 permission to continue that use was refused, which led to the issue of the Enforcement Notice by Doncaster on 4 February 2015. It alleged that the breach of planning control was that the use of the site was unlawful, and required the removal of the caravans and all associated structures and hardstandings within six months, together with restoration of the land within the next planting season.

4

The Inspector, by a Decision Letter of 10 December 2015, having varied the Enforcement Notice to allege as the breach of control that there had been a failure to comply with the condition identified above, allowed the Second Defendant's appeal on the ground set out in section 174(2)(a) of the Town and Country Planning Act 1990 (ie that planning permission should be granted for the development for which the notice relates) and granted planning permission under section 177(5) of the Act for the continuation of the change of use (ie that of the siting of residential caravans with ancillary development (the utility room, hardstanding and a septic tank)), subject to conditions, which, inter alia:

(a) limited occupation to gypsies and travellers as defined in the Planning Policy for Traveller Sites ("PPTS") Annex 1;

(b) restricted the use to the Second Defendant, her named daughter-in-law and their resident dependants; and

(c) limited the number of caravans to four, of which no more than two should be static caravans.

5

Doncaster now seek permission under section 289(6) of the Town and Country Planning Act 1990 (that relates to the Enforcement Notice decision) and section 288(4A) of the same Act (ie the grant of planning permission) to challenge that decision. By order of Hickinbottom J of 15 March 2016 the two challenges are to be heard together. Further, he ordered that the claim under section 288 be treated as a rolled up hearing.

6

(b) The main arguments of Doncaster

7

The appeal site lies in the statutory Green Belt. Doncaster makes complaint of:

(i) The Inspector's consideration of Green Belt policy and of the PPTS policy insofar as it relates to travellers' sites in the Green Belt;

i. (ii) The Inspector's treatment of the relevance of an appeal decision on land to the north of the appeal site;

ii. (iii) The Inspector's treatment of the Gypsy and Travellers Accommodation Needs Assessment ("GTANA") carried out by Doncaster, and of the weight which he gave to it;

iii. (iv) The Inspector's conclusion that there had been a failure of policy over the years by Doncaster to bring forward sufficient sites, or alternatively that he had erred in his assessment of it.

8

I shall set out the grounds of Doncaster in more detail at a later stage.

9

(c) Relevant national policy

10

National planning policy on the Green Belt is now to be found in the National Planning Policy Framework ("NPPF") in section 9, "Protecting Green Belt land". It is of course a longstanding policy, being not much changed since Circular 42 of 1955, which first introduced the modern approach to Green Belt policy. The passages relevant to this case are to be found in paragraphs 79 to 81, 87 and 88 to 89 of the NPPF. It will also be relevant to refer to the PPTS of August 2015.

11

The relevant passages of the NPPF read:

i. "79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

ii. 80. Green Belt serves five purposes:

iii. To check the unrestricted sprawl of large built-up areas;

iv. To prevent neighbouring towns merging into one another;

v. To assist in safeguarding the countryside from encroachment;

vi. To preserve the setting and special character of historic towns; and

vii. To assist in urban regeneration, by encouraging the recycling of derelict and other urban land.

viii. 81. Once Green Belts have been defined, local planning authorities should plan positively to enhance the beneficial use of the Green Belt, such as looking for opportunities to provide access; to provide opportunities for outdoor sport and recreation; to retain and enhance landscapes, visual amenity and biodiversity; or to improve damaged and derelict land.

ix. …

x. 87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

xi. 88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

xii. 89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt … [there are exceptions, none of which apply here]"

12

The current version of the PPTS was issued in August 2015, replacing its predecessor of March 2012. In the interim there had also been two Written Ministerial Statements to Parliament on 2 July 2013 and 17 January 2014. While the new PPTS does not refer to the status of either, paragraph 1 does state that:

i. "This document sets out the government's planning policy for traveller sites. It should be read in conjunction with the NPPF."

13

The PPTS contains the following passages of relevance (I have excluded those which merely reiterate matters of law):

i. "3. The Government's overarching aim is to ensure fair and equal treatment for travellers, in a way that facilitates the traditional and nomadic way of life of travellers while respecting the interests of the settled community.

ii. 4. To help achieve this, Government's aims in respect of traveller sites are:

(a) that local planning authorities should make their own assessment of need for the purposes of planning

(b) to ensure that local planning authorities, working collaboratively, develop fair and effective strategies to meet need through the identification of land for sites

(c) to encourage local planning authorities to plan for sites over a reasonable timescale

(d) that plan-making and decision-taking should protect Green Belt from inappropriate development

(e) to promote more private traveller site provision while recognising that there will always be those travellers who cannot provide their own sites

(f) that plan-making and decision-taking should aim to reduce the number of unauthorised developments and encampments and make enforcement more effective

(g) for local planning authorities to ensure that their Local Plan includes fair, realistic and inclusive policies

(h) to increase the number of traveller sites in appropriate locations with planning permission, to address under provision and maintain an appropriate level of supply

(i) to reduce tensions between settled and traveller communities in plan-making and planning decisions

(j) to enable provision of suitable accommodation from which travellers can access education, health, welfare and employment infrastructure

(k) for local planning authorities to have due regard to the protection of local amenity and local environment."

14

Policy A at paragraph 7 tells local planning authorities that they should assemble the evidence base necessary to support their planning approach, and sets out advice it wished local planning authorities to follow on how to do so.

15

Policies B to G at paragraphs 8 to 21 deal with plan-making, in other words the drawing up of policies in the...

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