Green on behalf of the Friends of Fordwich & District v Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE MOORE-BICK,LORD JUSTICE TUCKEY,Lord Justice Pill,Lady Justice Arden,Lady Justice Smith |
| Judgment Date | 10 February 2010 |
| Neutral Citation | [2010] EWCA Civ 64,[2005] EWCA Civ 1727 |
| Docket Number | C1/2005/0893/(A) /(B),Case No: C1/2009/0791 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2010 |
[2005] EWCA Civ 1727
Lord Justice Tuckey
Lord Justice Laws
Lord Justice Moore-Bick
C1/2005/0893/(A) /(B)
MR T COMYN (instructed by Community Law Partnership) appeared on behalf of the Appellant
MR I COLVILLE (instructed by Girlings) appeared on behalf of the Respondent
Friday, 16th December 2005
This is an appeal brought with permission granted by the judge below against the decision of Gibbs J given in the Administrative Court on 13th April 2005 when he allowed a statutory appeal brought pursuant to section 288 of the Town and Country Planning Act 1990 against the decision of the Secretary of State's inspector, dated 7th May 2004, to grant planning permission for the use of land at Moate Farm, Stodmarsh Road, Canterbury, for the siting of caravans or mobile homes. I use those words at this stage without prejudice to the application of any statutory definition of caravan.
The planning permission was granted to the third defendant in the proceedings before Gibbs J, Mr Shane Jones. The appellant, Mrs Bridget Jones, is his mother and was the fourth defendant. The claimant, the respondent to the appeal, was chairman of an organisation called the Friends of Fordwich and District. The Secretary of State was the first defendant. The local planning authority, the Canterbury City Council, was the second.
The judge below succinctly described the background facts of the matter as follows:
"6. A brief history of what led to those three associated appeals is as follows. On 28th March 2001 the third defendant purchased the site. On 19th June 2001 he applied to the second defendant for permission to site 3 caravans of 20-foot by 40-foot for all-the-year-round dwellings. He supplied details, in response to the second defendant's request, in support of his contention that he and his family had gypsy status. He told them, among other things, that he had been on their list for rehousing for 10 years and that their papers had been lost. He said that they wanted to settle at the site; he and his wife, two children, his sister, her husband and four children, and his mother and father.
"7. In or about August 2001 Mr Jones and his family and other relatives moved on to the site because they had no other place to park their vehicles or to live. The council's officers reported on 16th October 2001 that the application made by the third defendant was retrospective and said:
'Faced with increasing difficulties in maintaining gypsy travelling lifestyle both in terms of employment, finding sites to stay and concern for their children's future the applicant wishes now to settle down with his immediate family.'
The second defendant decided to defer considering the third defendant's application pending a site visit.
"8. On 13th November 2001 the second defendant's sub-committee considered the application again and resolved to grant planning permission. However, the claimants, the Friends of Fordwich and District, a local residents' organisation, challenged the decision. They did so on the ground that there had been an error in the second defendant's consideration of whether Mr Jones and his extended family were gypsies. The council conceded to the challenge in that they agreed to reconsider the application.
"9. In a statement to the council in April 2002 the third defendant gave further details about his reasons for moving on to the site. It included considerations related to the ill-health of members of the extended family, and indeed the immediate family. It contained details about the third defendant's recent employment, his travelling and his lifestyle.
"10. On 3rd December 2002 the third defendant made a further statement relevant to his alleged gypsy status. It is pertinent to note at this point that on 4th August 2002 there was a memorandum from the second defendant's licensing officer expressing reservations over whether the homes on the site at that time fell within the statutory definition of caravans. To that issue I shall return later.
"11. Meanwhile, on 30th April 2002 the further consideration of the third defendant's application had again been deferred by the second defendant's sub-committee and the matter was reconsidered on 11th December.
"12. In his affirmation statement, dated 3rd December 2002, the third defendant stated that it was neither his nor his family's intention to give up their gypsy way of life and they would use the site as a place where they could return to without any concerns about being removed. The third defendant provided an explanation for points that had been raised by the claimant in connection with his alleged employment. A number of documents were produced by the third defendant to support his affirmations."
On 6th March 2003 the second defendant, the local planning authority, refused planning permission. On 29th May 2003 the second defendant issued two enforcement notices. One, I will call it A, alleged a breach of planning control consisting of a change of use from agricultural land to (a) the stationing of three units of mobile living accommodation and ancillary storage, including touring caravans, and (b) residential use. The other enforcement notice, which I will call C, alleged a series of unauthorised acts done in connection with the stationing of the caravans. It included such matters as the installation of a cesspit and associated soil pipes, gas cylinders, hardstanding, mains electricity cables and water pipes, and, this is of some significance in light of the issues in the case, the erection of timber structures abutting the caravans, and, lastly I think, the construction of boundary fences and a driveway.
The third defendant appealed against the refusal of planning permission and against the two enforcement notices. The appeal against the refusal of planning permission was designated Appeal B. Against what I have called enforcement notice A, was appeal C, and that against enforcement notice C was appeal C.
The appeals went before the Secretary of State's inspector at a public enquiry. The third defendant was represented by counsel, as was the second defendant. The respondent, Mr Green, acted in person on behalf of the Friends of Fordwich District. As I have said the inspector, in resolving the appeals, decided to grant planning permission. That was both on appeal B and on the deemed application for permission arising under appeal A. Although the application for planning permission had been retrospective and thus related to the state of affairs on the ground as it was before the inspector, the third defendant had made it clear that its intention was to replace the existing older units with three modern purpose-built mobile homes. The inspector also allowed appeal C which related, as I have shown, to ancillary services and equipment.
It was integral to the inspector's decision that, as she held, the third defendant and his family were gypsies. That was because of the impact of planning policies in the structure plan and district plan which provided the framework for the inspector's decision. There were policies imposing strong restrictions on development in rural Kent where the relevant site in this case is to be found. The judge below set these out. It is not necessary for me, however, to do more than cite the planning policies relating to gypsies. Policy H8 of the structure plan provided:
"Where is there an identified need, the local planning authorities will make provision for accommodation for gypsies in local plans and through development control. Provision should be consistent with the Structure Plan's environmental, countryside, agricultural, archaeological and green belt policies, and will not normally be permitted in areas protected under policies ENV3—ENV6."
I should say that the site here is not within the Green Belt or within the protected areas there referred to in policy H8. Then, at paragraph 2.181 of the Canterbury District Plan, after the statutory definition of "gypsies" given by the Caravan Sites Act 1968 is set out at 2.179, this is stated:
"The Structure Plan Policy H8 and Circulars require provision be made for gypsy sites in accordance with identified need. The City Council will continue to support the existing official permanent gypsy caravan site in the District at Vauxhall Road which is adequate to meet expected demand and does not propose a need for any additional provision. Private planning applications for gypsy sites could be made and it is considered that the Plan should provide general policy guidance."
Finally, policy D64 in the District Plan:
"In considering proposals for private gypsy caravan sites the Council will have regard to the following criteria:
(a) The use of the site does not have any adverse impact on the residential amenity of existing buildings or uses, either by the close proximity, activities or operations on the site which would be detrimental to the surrounding area.
(b) It should not be located within areas designated as having special nature conservation, landscape, or conservation importance.
(c) The site, caravans and associated activities shall be adequately screened from the surrounding land.
(d) The site should be well related to local services and facilities—shops, public transport, medical and social services.
(e) Access to the site should not be detrimental to highway...
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