Maidstone Borough Council v Secretary of State for the Environment and and Another
| Jurisdiction | England & Wales |
| Judgment Date | 15 February 1995 |
| Judgment citation (vLex) | [1995] EWHC J0215-3 |
| Date | 15 February 1995 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2349/94 |
[1995] EWHC J0215-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Crown Office List
Before: Mr. Malcolm Spence Q.C. (Sitting as a Deputy Judge of the Queen's Bench Division)
CO/2349/94
MR. M. BAILEY (instructed by the Borough Solicitor, Maidstone Borough Council) appeared on behalf of the Applicant.
MR. T. STRAKER (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
MR. M. WILLERS (instructed by Messrs Peter Kingshill & Co., London, WC1) appeared on behalf of the Second Respondent.
THEDEPUTY JUDGE: Mr. Dunn, the Second Respondent, applied for planning permission for the change of use from agriculture to breeding horses and residential use for one gypsy family and retention of the existing mobile home, ancillary sheds and touring caravan. This use was already being carried on and the caravan and sheds were already on the site. This site is in the countryside outside Maidstone. The Borough Council refused permission and Mr. Dunn appealed to the Secretary of State for the Environment, and the Inspector appointed to determine the appeal allowed it. The Borough Council now applies to this court to quash the decision. Mr. Bailey, who appears on their behalf, takes three points. First, he submits that the Inspector erred in holding that Mr. Dunn was a gypsy. Secondly, he submits that the Inspector erred in his consideration of "specific needs" in Policy C15 of the Local Plan, and, thirdly, he takes a point about one of the conditions imposed.
I shall now read the relevant passages of the decision letter. Part of paragraph 10:
"Furthermore, under Policy C15 of the Local Plan the stationing of residential caravans and mobile homes in the countryside is not normally permitted. I recognise that the site does not fall within the Green belt, Area of Outstanding Natural Beauty or other specially designated area, the Greensand Ridge Special Landscape Area being some 1500m distant. Nevertheless, your client's development appears to me to be in clear conflict with the countryside policies in an up to date development plan and, in line with s.54A of the 1990 Act, should not be permitted unless material considerations indicate otherwise."
Paragraph 11:
"Your case is that the needs of your client as a gypsy trying to settle down constitutes such a material consideration. Section 16 of the Caravan Sites Act 1968 defines gypsies as 'persons of nomadic habit of life, whatever their race or origin'. The Council accepts that the appellant, who was born on a hop farm in Yalding and who until some 5 years ago travelled in Kent and Sussex doing seasonal farm work, is an ethnic gypsy and at the previous inquiry it did not dispute that he had a nomadic habit of life. However, the Council argues that the situation has now changed and that it has been established through a number of judgments from LB Greenwich v. Powell [1988] to Cuss v. SSE & Wychavon District Council [1990] that nomadism can be abandoned by intention and can be resumed. Your contention is that at the time the appellant bought and moved on to the site, which the Inspector in the appeal by Mr. Moth … took to be the relevant time to determine status, he was a gypsy with a seasonal travelling lifestyle."
Paragraph 12:
"At the present time, your client's main occupation and source of income is from landscape gardening around the Maidstone area, which does not normally entail other than normal daily travel to work. However, I note that he also breeds horses, of which he currently owns 8, and travels to Horse Fairs including Appleby, Stow-on-the-Wold and the New Forest where he buys and sells horses. Not all fairs attended required overnight stays, but overall he could be away for up to 2 months of the year at least partly in connection with a traditional gypsy activity which I consider, bearing in mind the judgment in Regina v. South Hams District Council ex parte Gibb [1994], also has an economic justification. I do not therefore conclude, taking account of the relatively short time during which he has adopted a generally more settled lifestyle, that the appellant has so abandoned travelling as to lose his status as a gypsy under s.16 of the 1968 Act."
The Inspector considered at paragraphs 16 to 18 the six criteria which are set out in Policy C15. He concluded in paragraph 19 as follows:
"I conclude therefore that, although contrary to countryside policy, the site broadly satisfies the criteria in Policy C15 and the development does not significantly detract from the rural character and appearance of the area or the setting of the listed buildings. Taken together with the need to provide accommodation for gypsies in the area, the need for the appellant's children to be settled in order to receive regular education and, in the case of the daughter, medical attention for diabetes, and the comparative lack of local opposition to the development, I have concluded that the use can be permitted. I shall accordingly allow the s.78 appeal."
With respect to the first point, I must first read the definition of "gypsy" set out in section 16. "Gypsies" means "persons of nomadic habit of life, whatever their race or origin ….." Mr. Bailey submits that:
"There is no evidence, alternatively insufficient evidence that the Second Respondent [Mr. Dunn] was, at the material time, a gypsy within the meaning of section 16 of the Caravan Sites Act 1968. [Mr. Dunn's] evidence was that he had abandoned any nomadic habit of life previously obtaining, and, centrally, the very purpose for moving to the appeal site was to settle down. There was not even evidence of an intention at some future uncertain date to resume a nomadic habit of life.
In addition, the permission is for residential occupation by one gypsy family in accordance with the terms of the application and is subject to conditions including Condition IV that the occupation of the site shall be limited to gypsies …..
Thus the condition is to occupy by one gypsy family, alternatively people who are gypsies. The evidence is, on the Second Respondent's highest case that he is alone a seasonal nomad."
Mr. Bailey referred me to the case of Greenwich London Borough Council v. Powell [1989] AC 995, Cuss v. Secretary of State for the Environment [1991] JPL 1033, and Horsham District Council v. Secretary of State for the Environment (13th October 1989, unreported), all most relevant, but I shall not read from them, save that I shall return to Greenwich later, and I wish to stress a passage in the judgment of McCullough J. in Horsham at page 5 of the transcript:
"Clearly there can, and indeed must, come a time when as a matter of fact the nomadic habit of life has been lost. When it is lost the gypsy is no longer a gypsy for the purposes of the Act. He remains, of course, a gypsy by descent, by culture and by tradition, but that is not the issue. The question is whether he is a gypsy for the purposes of the relevant Acts."
Mr. Dunn, on the evidence, undoubtedly had been a gypsy, and the question was whether he had lost that status for the purposes of the Act.
Mr. Bailey also cited the recent case of R. v. South Hams District Council, ex parte Gibbs [1994] 3 WLR 1151. The Inspector had this case cited to him. I shall read from the judgment of Neill LJ at page 1161:
"(1) The links between members of the group and between the group and other groups who are either at the site or visit the site. Living and travelling together in cohesive groups is a feature of nomadic people. (2) The pattern of the journeys made by the group. Though a group of gypsies may have a permanent residence ( Greenwich London Borough Council v. Powell [1989] AC 995), a nomadic habit of life necessarily involves travelling from place to place. Furthermore, as the duty imposed by section 6(1) relates to the provision of adequate accommodation 'for gypsies residing in or resorting to' the area of the county council, it is relevant to inquire whether the group visits sites in the county on a regular basis. (3) The purpose of the travel. I accept that the word 'nomadic' no longer has any connection with the context of 'seeking pasture', but it seems to me that in the context of the Act the word 'nomadic' adds to the words 'habit of life' a sense of purpose for the travelling."
I leave off reading there and continue:
"As Lord Donaldson of Lymington MR remarked in Mole Valley District Council v. Smith (1992) 90 LGR 557, 560, the definition in section 16 of the Act of 1968 is not a particularly happy definition. In my judgment, however, in the context of Part II of the Act the definition of 'gypsies' in section 16 imports the requirement that there should be some recognisable connection between the wandering or travelling and the means whereby the persons concerned make or seek their livelihood. Persons, or individuals, who move from place to place merely as the fancy may take them and without any connection between the movement and their means of livelihood fall outside the statutory definitions. As I read section 6(1) of the Act the duty of the County Council is to provide sites for those who come in cohesive groups and who have some purpose and pattern for their wanderings."
On page 1162 Neill LJ, after referring to Ex parte Khawaja, said:
"In my judgment, however, the possibility of applying the principle in a case such as the present is rendered impossible, certainly in this court, by the decision of the House of Lords in R. v. Tower Hamlets London Borough Council, ex parte Ferdous Begum [1993] AC 509. In that...
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