Massey v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 10 December 2008 |
| Neutral Citation | [2008] EWHC 3353 (Admin) |
| Docket Number | CO/11385/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 December 2008 |
[2008] EWHC 3353 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR Justice Collins
CO/11385/2007
Ms V Easty (instructed by Community Law Partnership) appeared on behalf of the Claimant
Mr H Phillpot (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Mr T Jones (instructed by Marrons) appeared on behalf of the Interested Party
: This is a claim brought pursuant to section 288 of the Town and Country Planning Act 1990 against a decision of an Inspector given in a determination of 7th November 2007, by which the three claimants were refused permission to place caravans in which they were living on a site known as the Oakery Farm, Wheat Common Lane, near Ludlow in Shropshire.
The Inspector in fact allowed a change of use to what was described as a travellers' site, but he limited the right and occupation to two only of the number of appellants who had sought permission to have their caravans there. He formed the view in his determination that the site in question did not qualify to be regarded as one appropriate for gypsy and traveller living, because in various respects it did not accord with the requirements of the relevant plan. The reason why he allowed the two was because he decided that they were travellers within the meaning of that term (in the relevant guidance in the Circular 01/2006), and that despite the failure to comply with various of the plan conditions, to which I will come shortly, the personal circumstances of those two prevailed.
So far as the three claimants are concerned, he decided that they did not qualify within the meaning of the Circular as gypsies and travellers. They are not, any of them, gypsies, but each asserts that he or she is what is known, I think, as a new traveller; that is to say someone who does not have a family history of travelling but has decided that he or she wishes to undertake that sort of lifestyle and for various reasons has not wished to have a permanent base, in the sense of somewhere to live with bricks and mortar, but wishes to travel around and to stay in various places but for various reasons—for example, bringing up children—to have somewhere they can regard as a base.
In fact, the permission granted by the Inspector was for a period of 12 months only, and that 12 months has now expired. I did wonder, in those circumstances, whether there was any purpose in this claim, but Miss Easty informed me that the Council has recently granted permission for a further seven people to have a caravan on the relevant site on the basis that they were travellers. The claimants would wish to be able to apply to the Council but will not be able to do so. This is because the view will be taken that they do not qualify because that is what the Inspector decided. Accordingly, there is a reason why, if the Inspector was wrong in law, that should be made clear so that they can make an application on a proper basis.
In addition to the Secretary of State, who of course is the defendant, I have had representations made on behalf of the Derbyshire Gypsy Liaison Group. Although linked to the county of Derbyshire, in fact the group has a rather wider remit and essentially considers the interests of gypsies and travellers. It has a clear interest in the issue which is the central issue in this case, which is how one should properly construe the guidance and whether the Inspector's approach was a correct one. They were given permission by Pitchford J to join in as a defendant. That, with respect to everyone, seems to me to have been wrong. They are clearly an interested party, and I have regarded them as appearing in that capacity rather than as a defendant. It perhaps matters not very much because the important thing is that they have been able to make such submissions as they would wish to make.
Their concern is that there is an increase in pressure on gypsies and travellers to find somewhere to base their caravans or to stay and there is, as is well known, a dearth of sites available. The concern, therefore, is that the definition of travellers should be kept to those who are genuinely to be regarded as such and whose protection is important. The wider the approach to who can qualify, the greater pressure there will be to find sites for travellers and gypsies to stay. Accordingly, they are concerned to uphold the Inspector's approach in this case which they submit is the appropriate one. They do not go the whole way with the Secretary of State; there is a difference between the approach to the Circular, which I will identify in due course.
The claimants contend that it was common ground, or so believed, at the hearing before the Inspector that the site did qualify as a potential gypsy or travellers site within the terms of the relevant planning policy. The relevant planning policy was SDS9 in the plan, which reads:
“Caravan sites to meet the identified needs of gypsies and travellers will be permitted in locations which meet the following criteria.
• the site is reasonably accessible to settlements with schools, shops and other community facilities;
• The site is not on the best and most versatile agricultural land;
• access to the site is of a sufficient standard to accommodate the traffic likely to be generated;
• the site is naturally screened or may be screened and/or landscaped in such a way as to ensure the long-term retention of the screening;
• the development would not cause nuisance, annoyance or disturbance in nearby residential areas because of noise, dust grit, smell, traffic generation or other adverse environmental effects;
• the development would not result in an adverse impact upon the quality of the landscape within, or visible from, the Area of Outstanding Natural Beauty.”
The Inspector concluded that the site failed to meet two, and possibly three, of those criteria: first, it was on the best and most versatile agricultural land; secondly, it was not adequately screened; and thirdly (although it seems that this is not the strongest objection because there were no highway objections from the Highway Authority) that the access road was narrow and might create problems.
Miss Easty complains that the Inspector did not indicate at the hearing that he was minded to consider whether or not it did meet the criteria, because it seemed to be common ground between the parties (and indeed that was expressed to be so) that it was. If that was material so far as the interests of the claimants were concerned, then I could see some force in that submission but, for reasons which will become apparent, in my view it is not of any assistance to the claimants as they failed to obtain the permission which they sought because the Inspector concluded that they did not fall within the category of travellers or gypsies and so they would not be those whose needs would be permitted by virtue of SDS9. That being so, whether or not the site qualified within the provisions of the policy SDS9 would not have assisted them one way or the other. It would only have assisted them if he had decided that they were gypsies or travellers within the meaning of that term.
That expression, “gypsies and travellers” comes from paragraph 15 of Circular 01/2006. The context within which that definition was applied is set out in paragraphs 13 and 14 of the Circular:
“13. The Government recognises that many gypsies and travellers wish to find and buy their own sites to develop and manage. An increase in the number of approved private sites may also release pitches on local authority sites for gypsies and travellers most in need of public provision. However, there will remain a requirement for public site provision above the current levels. Such sites are needed for gypsies and travellers who are unable to buy and develop their own sites, or prefer to rent, and to provide transit sites and emergency stopping places where gypsies and travellers may legally stop in the course of travelling.
14. Gypsies and travellers are estimated to make up less than 1% of the population of England, but only a proportion of gypsies and travellers live in caravans. July 2005 Caravan Count figures show that there are around 16,000 gypsy and traveller caravans with around three quarters of these on authorised sites. The overall need for gypsy and traveller sites is therefore very small. However, this need has often proved difficult to meet.”
Then comes the definition which is as follows:
“Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family's or dependants' educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling show people or circus people travelling together as such.”
Then paragraph 17 makes the point that some gypsies and travellers have an actively itinerant lifestyle, including groups of long distance travellers and generally self-employed people sometimes occupied in scrap metal dealing, laying tarmacadam, seasonal agricultural work, casual labour and other employment. These traditional patterns of work are, however, changing and the community has generally become more settled. There is a reduction in seasonal agricultural labour work as there are more travellers...
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