Jane Stevens v The Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Hickinbottom
Judgment Date2013
Neutral Citation[2013] EWHC 792 (Admin)
Docket NumberCase No CO/1689/2011

[2013] EWHC 792 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Hickinbottom

Case No CO/1689/2011

Between:
Jane Stevens
Claimant
and
(1) The Secretary of State for Communities and Local Government
(2) Guildford Borough Council
Defendants

Marc Willers and Alex Grigg (instructed by Lester Morrill Solicitors) for the Claimant

Hereward Philpott and Sarah Hannett (instructed by the Treasury Solicitor) for the First Defendant

The Second Defendant did not appear and was not represented

Hearing dates: 9 October 2012, and 21 January 2013

Further written submissions: 23-28 January 2013

Mr Justice Hickinbottom

Introduction

1

This application, made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), raises important issues as the approach of both planning decision-makers and the court to proportionality in circumstances in which a planning decision engages the right to respect for family life under article 8 of the European Convention on Human Rights, and in particular involves the rights of children.

Background

2

The Claimant Jane Stevens and her family are Gypsies, for whom living in caravans is an integral part of their ethnic identity, recognised under both European law ( Commission for Racial Equality v Dutton [1989] QB 783) and domestic law (for example, as a protected characteristic under the Equality Act 2010).

3

The Claimant lives with her partner and extended family, which includes several children. Since mid-2009, they have lived on land known as The Paddocks, Rose Lane, Ripley, Woking, Surrey ("the Site"), a plot of agricultural land, divided off from open paddock land, without any planning history, which they have developed into a caravan site for two static and three touring caravans, together with a hardstanding, utility shed, and cess pool, and a stable block and yard for keeping horses. The family group includes two young children who in the year to June 2010 attended a local primary school.

4

On 22 May 2009, the Claimant applied to the Second Defendant planning authority ("the Council") for retrospective planning consent for the stationing of the caravans etc on the Site as a single family site.

5

The Site abuts the Ripley Conservation Area, and is located within a Green Belt and, as such, it has been the subject to central government guidance from time-to-time. At the relevant time, that guidance was contained in the Secretary of State's Planning Policy Guidance Note PPG2 "Green Belts" ("PPG2"), upon which this judgment focuses. PPG2 has since been replaced by the National Planning Policy Framework ("the NPPF"), although the relevant aims and provisions in the new guidance do not appear to have altered materially.

6

The aim of the policy was set out in paragraphs 1.4 and 1.5 of PPG2, thus:

" Intentions of policy

1.4 The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development as sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development….

Purposes of including land in Green Belts

1.5 There are five purposes of including land in Green Belts:

— to check the unrestricted sprawl of large built-up areas;

— to prevent neighbouring towns from merging into one another;

— to assist in safeguarding the countryside from encroachment;

— to preserve the setting and special character of historic towns; and

— to assist in urban regeneration, by encouraging the recycling of derelict and other urban land."

The substance of those aims is repeated in paragraphs 79–80 of the NPPF.

7

How those aims were translated into practice is set out in paragraphs 3.1 and 3.2 of PPG2, which imposed a presumption against inappropriate developments (i.e. developments which conflict with the purposes of including land within the Green Belt and do not maintain openness):

"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances….

3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."

The substance of that guidance is retained in paragraphs 87–88 of the NPPF:

"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.

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."

8

Therefore, by definition, any inappropriate development will result in harm to the Green Belt; and, under both PPG2 and the NPPF, in making planning decisions, planning authorities (and, in their turn, inspectors appointed by the Secretary of State to decide appeals) were and are required to give "substantial weight" to such harm; but that potential harm might nevertheless be outweighed by other material considerations. Where it is clearly outweighed, then a development that harms the Green Belt may be allowed.

9

PPG2 indicated that, as a matter of policy, any material change in the use of Green Belt land would be inappropriate unless it maintains openness and does not conflict with the purposes of including land within the Green Belt. The Claimant has throughout rightly conceded that the change of use of the Site which has taken place does constitute an inappropriate development, and that the development does result in a loss of openness.

10

She also accepts that the Site is not suitable, in planning terms, as a permanent base for her and her extended family. Consequently, when she applied for retrospective planning permission, she did so for temporary permission, for a period of four years.

11

That period was chosen because, whilst at the relevant time Gypsy and Traveller sites were generally sparse (for the historical background, see R (Knowles & Knowles) v Secretary of State for Work and Pensions [2013] EWHC 19 (Admin) ("Knowles & Knowles") at [5]–[10]) and there was a need for further sites in the local area, in 2006 a Gypsy and Traveller Accommodation Assessment was carried out on behalf of the Council and other adjacent local authorities. At the relevant time, the Council was preparing a Site Allocation Development Plan with a view to addressing that need through the provision of new sites; and it was expected that a timetable for the identification of sites would be in place within 3–4 years. Planning Circular 01/2006, "Planning for Gypsy and Traveller Sites", advised that, where there was an unmet need but a reasonable expectation that new sites would likely become available to meet that need, then local authorities should consider granting temporary permission. The Claimant considered that four years would give sufficient time to pursue a grant of planning permission for another site in the light of the expected Site Allocation Development Plan. There is no evidence before me as to how the assessment of need for further Gypsy and Traveller sites and the identification of sites to meet any such need has progressed, if at all, since then.

12

The Claimant's application for planning permission was refused by the Council on 19 February 2010. On 22 March 2010, the Council issued an enforcement notice, requiring the use of the Site as a caravan site to cease, and for the permanent removal of all caravans etc within three months.

13

The Claimant appealed against both the refusal of planning permission and the enforcement notice. As his inspector, the Secretary of State appointed Wendy McKay ("the Inspector"), who consolidated the appeals. There was a hearing and a site visit on 21 September 2010, at which the Claimant was represented by Ms Alison Heine, a planning consultant. On 11 January 2011, the Inspector issued a decision refusing both appeals, except she varied the enforcement notice to give a year (rather than three months) for compliance.

The Application

14

In this application, the Claimant seeks an order under section 288 of the 1990 Act to quash the Inspector's decision dismissing the Claimant's appeal against the Council's decision to refuse retrospective planning permission. No challenge has been made to the Inspector's decision in relation to the enforcement notice.

15

The section 288 application is made on two grounds, namely:

Ground 1: The Inspector's conclusion that the development had a significant adverse visual impact was founded upon a factual finding for which there was no...

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