R (Baker) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Sir Robin Auld,Lord Justice May |
| Judgment Date | 28 February 2008 |
| Neutral Citation | [2008] EWCA Civ 141 |
| Docket Number | Case No: C1/2007/2519 & 2520 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 February 2008 |
[2008] EWCA Civ 141
Lord Justice May
Lord Justice Dyson and
Sir Robin Auld
Case No: C1/2007/2519 & 2520
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HHJ MOLE QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Drabble QC and Stephen Cottle (instructed by Messrs South West Law Ltd) for the Claimants/Appellants
Philip Coppel (instructed by Treasury Solicitor) for the First Defendant/Respondent
Robin Allen QC & Catherine Casserley for the Intervenor
Hearing dates: Wednesday 13 and Thursday 14 February 2008
Introduction
By a judgment given on 26 September 2007, HHJ Mole QC dismissed the appellants' applications under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a decision of the Secretary of State's Inspector dated 8 November 2006. By this decision, she dismissed three appeals under section 78 of the 1990 Act against the refusal by the London Borough of Bromley (“Bromley”) to grant their applications for planning permission for the retention of a number of touring caravans and mobile homes on 3 plots within Waldens Farm, a 30 hectare estate of former orchards near Orpington, Kent which has been subdivided into about 800 small leisure plots. The site lies within the Green Belt. The appellants appeal to this court with the permission of Sir Henry Brooke.
In some contexts, it is necessary to distinguish between travellers and gypsies, and in others to distinguish between Irish Travellers and other travellers. These distinctions are not material to the issues that arise in the present case. It is sufficient to say that it is not in dispute that all the appellants have what the Inspector referred to as “gypsy status”. In fact, with the exception of Mark Baker who was born in England, the appellants and their families are all Irish travellers. Para 15 of Circular 01/2006 which is entitled “Planning for gypsy and traveller caravan sites” defines “gypsies and travellers” as meaning:
“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.”
Each of the 3 plots had 2-year planning permissions for residential use as gypsy sites personal to the occupiers to whom the permissions were granted. These occupiers have since left and the appellants have taken over from them. The planning permissions expired in June 2005. Mark Baker occupies the plot 270 (the first appeal site); Debbie Ross and Pamela Maughan occupy plots 473–474 (the second appeal site); and Lucy Owen occupies plot 457 (the third appeal site).
Following Bromley's refusal of planning permission on 24 October 2005, the appellants appealed to the Secretary of State. Ms Ruth MacKenzie was appointed as Inspector. She held an inquiry and made a site visit. In a decision letter dated 8 November 2006, she dismissed all the appeals. In short, she held that she was required to undertake a balancing exercise, weighing on the one hand harm to the Green Belt in the light of the relevant policies if the appellants were permitted to remain, and on the other hand a variety of other considerations which favoured the appellants' cases. She concluded that the balance came down against the appellants.
The appellants invoked section 288 of the 1990 Act and advanced 9 grounds of challenge before the judge. He rejected all of them. On these appeals, they have raised only 2 of these grounds. But additionally, they have advanced a third ground of appeal which was not raised before the judge, namely that, in breach of section 71(1)(b) of the Race Relations Act 1976 (“RRA”), the Inspector failed to have due regard to the need “to promote equality of opportunity……between persons of different racial groups”. It is this ground that has been the principal focus of the appeals. We gave permission to the Equality and Human Rights Commission (“the Commission”) to intervene in the appeals, since the issues arising under section 71(1) of the RRA are of importance, and we were told that this is the first time that they have been considered by this court, at any rate in a planning context. I say at the outset that I have been much assisted by their intervention.
The Inspector's Decision
In paras 3 to 5 of her decision letter, the Inspector summarised the salient features of the 3 plots and the appellants' occupation of them. At para 6, she recorded that it was common ground that the residential use of all 3 appeal sites was “inappropriate development” in the Green Belt. The main issue in the appeals, therefore, was whether there were other considerations which clearly outweighed the harm to the Green Belt, and any other harms, sufficient to justify the inappropriate developments on the basis of very special circumstances. This paragraph accurately reflects the content of para 3.2 of the government guidance given in Planning Policy Guidance note 2: Green belts (“PPG2”), which I have set out at para 26 below.
At paras 7 and 8, the Inspector referred to the polices in the applicable local plans which were in line with PPG2 These were Policy 3D.8 in the London Plan and policy G1 in the Bromley Unitary Development Plan (“UDP”) which set out the general presumption against inappropriate development in the Green Belt; Policy 3A.11 of the London Plan which encouraged neighbouring boroughs and districts to assess the accommodation needs of gypsies and travellers and review their pitch capacity; and UDP policy H6 which established that Bromley would ensure the continued provision of the existing gypsy sites within the borough. She noted that Bromley intended to produce a criteria-based gypsy policy as part of its Housing Development Plan Document, which it was hoped would be completed by the end of 200We were told that it has not yet been adopted.
At paras 9 to 12, the Inspector considered the issue of harm to the Green Belt. She noted that inappropriate development is by definition harmful to the Green Belt (para 9) and that the proposed use of the appeal sites would reduce the openness of the countryside and represent a form of urbanisation of it (paras 10–11). At para 12, she concluded: “I am of the opinion that the Green Belt's openness is diminished by all 3 appeal sites in a way which I consider to be harmful”.
At paras 13 to 31, she addressed a number of other considerations. The first of these was the appellants' gypsy status. She referred to the definition which I have quoted at para 2 above and held that all the appellants had gypsy status. The next “other consideration” which she considered was the personal circumstances of each appellant (paras 14–16).
She dealt with Mr Baker at para 14. She said that he was born in the Bromley area and his family had been in the area for several generations. He lived on plot 270 with his wife and 4 sons (aged 12, 11, 10 and 4). All the boys attended school. The eldest received additional help with his education at Bromley Bridge for Learning, Step Ahead Centre. Mr Baker and his wife wanted their sons to have a good education, which they thought would not be possible without a settled base. Until they arrived at Waldens Farm, the boys were never in one school for more than a few weeks. The family were not on the waiting lists for any other gypsy sites. They felt that the Star Lane and Old Maidstone Road sites in Bromley were not good places to bring up a family. In any case, Mrs Baker was an Irish Traveller and for that reason alone they would not be welcomed at either of those sites.
The personal circumstances of Debbie Ross and Pamela Maughan were considered in para 15. They lived on plots 473–474 with Ms Ross's sister. They had six very young children between them. They had moved to the plot in September 2004, having previously travelled around Kent and the South of England. They wanted a settled base so that their children could be educated and the whole family have easy access to healthcare. They had made enquiries about vacancies on nearby authorised sites, but the waiting lists were long and Irish travellers were not welcome.
The Inspector considered the case of Lucy Owen in para 16. Ms Owen was an Irish traveller with no family connections in Bromley. She had 3 very young children. The eldest child (aged 4) had started primary school. His regular attendance at school was important to her. She felt that regular school attendance would be extremely difficult if she had to leave Waldens Farm and live on the side of the road or in unauthorised encampments. The police had advised her that moving to the sites at Star Lane or Old Maidstone Road would not be safe: the residents of those sites made life difficult for Irish travellers.
The next consideration addressed by the Inspector was the need for additional gypsy sites in the area (paras 17–21). She acknowledged that there was an undisputed need for gypsy sites nationwide and in the Greater London Area (para 17). She noted the work being done by Bromley to find more gypsy sites, but there remained an...
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