R Anthony Jayes v Flintshire County Council Mr L. Hamilton (Interested Party)
| Jurisdiction | England & Wales |
| Judge | C. M. G. Ockelton |
| Judgment Date | 13 April 2017 |
| Neutral Citation | [2017] EWHC 874 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 April 2017 |
| Docket Number | Case No: CO/2438/2016 |
[2017] EWHC 874 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/2438/2016
and
Kevin Leigh (instructed by Jayes Collier LLP) for the Claimant
John Hunter (instructed by Flintshire County Council Legal Services) for the Defendant
No representation or appearance for the Interested Party
Hearing date: 8 December 2016
Judgment Approved
INTRODUCTION
The site concerned in these proceedings is Dollar Park, Baglitt Road, Holywell, Flintshire. It belongs to the Interested Party. The claimant's house, Glyn Abbot, is opposite the site and overlooks it from a raised position. By these proceedings the claimant challenges the defendant's decision on 7 April 2016 to grant the interested party planning permission to continue to use the site as a residential gypsy site. The permission allows this use of the site to accommodate nine families on seven pitches with a total of thirteen caravans (no more than seven of which are to be static), retention of hardstanding and boundary works, retention and continued use of three amenity blocks and the erection of a fourth. The grant is of temporary permission and the use is limited to a maximum of five years from the date of the grant.
Permission was refused by Cranston J on the papers but granted on limited grounds by Holgate J. Following the grant, revised grounds of challenge were filed on 13 September 2016; the respondent's detailed grounds of resistance to those grounds are dated 18 October 2016. The interested party has taken no active part in the proceedings and has not filed an acknowledgment of service.
PLANNING HISTORY
The site was first occupied as a gypsy encampment in March 2007 and an application for planning permission was made then. Planning permission was refused in February 2008 and an Enforcement Notice was issued the next month. The interested party appealed against the Notice and the refusal of planning permission. The Inspector said that the decision was a difficult one, because of the article 8 rights of the occupants and the lack of suitable alternative accommodation for gypsies in the county, both of which factors demanded considerable weight. One major factor against the development was, however, the objection by the Highways Department to the access arrangements. The Inspector dismissed the appeals, save for varying the Enforcement Notice to allow until February 2010 for the site to be vacated and cleared.
In December 2009, before the expiry of the Enforcement Notice as varied, there was a further application for planning permission. The application was refused and the interested party again appealed. The Inspector's decision was in February 2011. He took into account the continued lack of alternative sites and the impact on the article 8 rights of those on the site, including interference with established arrangements for health care and the education of children, all of which would be interfered with if the families were forced to leave the site and set up camp on the roadside. These were matters to which he gave substantial weight. The highway objections the Inspector decided no longer had weight in the light of revised access proposals. He was concerned by the harm that would be caused to the rural character of the area and the setting of Glyn Abbot. These factors counted against a grant of permission on a permanent basis, but he considered that there should be a grant on a temporary basis pending the allocation of sites as part of the Local Development Plan process. He therefore allowed the appeal to the extent of granting permission for five years from the date of his decision, and so expiring in February 2016.
THE DECISION UNDER CHALLENGE
Following the application, on 2 November 2015, the usual time was allowed for objections, and an objection was received from the claimant on behalf of himself and others. The Council Officer, Emma Hancock, who is familiar with the site and its planning history, prepared the report to the Council's Planning and Development Control Committee. The report itself is not dated. She summarised the responses to the application, including the claimant's objection. Amongst the points made by the claimant and appearing in her summary are the following: 'no information on whether local children attend schools or the health reasons to remain on site or the befits [sic] of living as an extended family together on one site; some of the named families on the 2011 permission no longer reside on the site so must have found alternative accommodation'.
Setting out the facts at paras 7.19 and following of her report, Ms Hancock noted that the application was for '9 gypsy family units Hamiltons Gaskin and Price on 7 pitches in 13 caravans'. She observed that since the occupation of the site in 2007 two individuals who were then children have grown up and occupy their own caravans. She lists the current and proposed occupants of the site in para 7.21, comparing it with the 2007 position and concluding that 'the site is still occupied by the same extended families'.
All those listed in the report appear to be adults. The only reference to children on the site is in connexion with a play area, which was part of the permitted development in the previous planning permission but has instead been occupied (without permission) by a further caravan. Ms Hancock writes 'The loss of the play area is justified in the context that the pitches are all large enough for the children to play within their own plots and the play area was never utilised as such as families prefer to supervise children within the plots'. There appears to be no reference to any specific children or their circumstances or needs. There is no indication of whether the justification of the loss of the play area is Ms Hancock's or the applicant's. There is no indication of the source of the information about what parents prefer.
So far as the adults are concerned, there appears to be no reference in the report to any illnesses that might be of importance in assessing the need for them to remain where they are. Nor does there appear to be any assessment of the links (if any) between the families named (and described as extended families, in the plural) that might raise a need for any one or more of the families to be with another or others.
As Ms Hancock says at para 7.30, the main issues for consideration are the impact on the rural character of the site and the setting of the listed building and whether these factors still outweigh 'other considerations such as the best interests of the children on the site, the need for gypsy and traveller sites, the provision of alternative sites and the personal circumstances of site occupants'.
The report then goes on to consider need, and the availability of sites for gypsies in Flintshire and in North Wales. She observes that on appeal inspectors have placed considerable weight on the lack of alternative accommodation. She lists the sites available and those under consideration. Two of the latter are underoccupied, to the extent of five sites in all. She looks to the completion of the Council's Gypsy and Traveller Accommodation Needs Assessment, as required by the Housing (Wales) Act 2014, of which she hopes results will be available for consideration in January 2016. She concludes 'However in light of the fact that there is no obvious alternative to direct these families to it is evident that some level of quantitative need still exists'.
At para 7.58 is the heading 'The best interests of the child, Personal circumstances and Human Rights'. The text of the paragraph is as follows:
"No details of the applicants or the site's resident's specific personal circumstances have been put forward other than that they have a need for lawful accommodation in this area where they can continue to live together as an extended family group and where they can obtain adequate health care and regular schooling for children. There are children living on the site, however the exact numbers and ages have not been provided by the applicants."
Ms Hancock goes on to set out the Inspector's consideration of this issue in the 2011 decision, referring to the possibility of unlawful interference with the (then) existing arrangements. Her own next observation is that It is acknowledged that children would live on the site and the Local Authority has a statutory duty under the Childrens Act 2004 to safeguard and promote the welfare and well-being of children. She adds a reference to the United Nations Convention on the Rights of the Child, and concludes this section of the report as follows at para 7.62:
"These considerations are material considerations in making a decision as to the impact any decision would have on the children residing on the site. If permission is refused then the impact of not having a settled base would need to be considered and weighed in the planning balance as a primary consideration."
She then looks at the possibility of a grant of temporary permission and the conclusion of the report is a recommendation of a grant of temporary permission on the grounds that the harm to the character of the site and the setting of the listed building do weigh against granting planning permission on a permanent basis but that refusal on a temporary basis would 'make the families and their children homeless and put them on the roadside with no base to access health care and education.' A temporary grant would enable different provision to be made when the needs assessment is implemented.
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Flintshire County Council v R Anthony Jayes
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