R (Basildon District Council) v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE,MR JUSTICE SULLIVAN |
| Judgment Date | 08 November 2004 |
| Neutral Citation | [2004] EWHC 951 (Admin),[2003] EWHC 2621 (Admin),[2004] EWHC 2759 (Admin) |
| Docket Number | CO/2849/03,CO/1799/2004,CO/5829/2002, CO/5826/2002 |
| Date | 08 November 2004 |
| Court | Queen's Bench Division (Administrative Court) |
[2003] EWHC 2621 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Sir Richard Tucker
(sitting As A Deputy High Court Judge)
CO/2849/03
MR PETER MILLER (instructed by Solicitor for Basildon DC) appeared on behalf of the CLAIMANT
MR MARC WILLERS (instructed by Bramwell, Browne & Odera) appeared on behalf of the DEFENDANT
This is an appeal under section 288 of the Town and Country Planning Act 1990 against the decision of the first defendant, the First Secretary of State, dated 8 May 2003. The decision was to allow appeals by the second and third defendants, Rachel and Elizabeth Cooper, under section 78 of the Act against the refusal of the claimants, the Basildon District Council, to grant planning permission for the change of use of land to a Gypsy caravan site. The land referred to is at the rear of Fanton Hall Cottages, Harrow Road, North Benfleet, Wickford, Essex, comprising two adjacent plots called Foxgrove and Blossom.
The effect of the decision was to grant planning permission for the change of use. The claimants, who are the local planning authority, are aggrieved by the decision. They submit that it is flawed in two respects and that it ought to be quashed. The first defendant, the First Secretary of State, had agreed with his inspector's recommendations contained in his report following a public inquiry held earlier in the year. However, the first defendant has reached the view that the claim issued by the claimants might well be established at the hearing and has offered to submit to judgment. He no longer seeks to support his inspector's conclusions or recommendations and he was not represented at the hearing.
The second defendant, Rachel Cooper, owns the land and it is occupied by her and her family, including her daughter in law, the third defendant, Elizabeth Cooper. They take a different view. They have been represented before me by Mr Willers who submits that the inspector reached a correct conclusion on proper grounds and that the appeal should be dismissed.
There is no doubt that both defendants were Romany, that is to say ethnic Gypsies. They claim that they still are and that the inspector reached a correct decision as to their present status. This is crucial to the outcome of the appeal. The claimants contend that the defendants have, and had at the time of the decision, abandoned their nomadic way of life and therefore their Gypsy status.
The claimants advanced two grounds of appeal before me. The first ground is that the inspector made an error of law and failed to give adequate reasons for his decision. The second ground is that the inspector failed to take into account relevant matters. The third ground has been abandoned.
In a nutshell, the claimants contend that the Secretary of State and his inspector got it wrong in determining that the second and third defendants are Gypsies. A number of criticisms are levelled against the inspector by the claimant's principal planning officer, Neil Costen, in a further witness statement. In order to set these matters in context, it is important to consider the statutory definition of Gypsies contained in section 24(8) of the Caravan Sites and Control of Development Act 1960, namely:
"Persons of nomadic habit of life, whatever their race or origins."
Detailed consideration of this definition and of judicial interpretations of it is contained in the judgment of Auld LJ in Wrexham County Borough v The National Assembly of Wales and Berry [2003] EWCA Civ 835. That judgment was delivered on 19 June 2003, that is to say after the inspector's decision in the present case. A petition for leave to appeal to the House of Lords has been lodged, but I have not been asked to adjourn pending the outcome of that application or any subsequent appeal. Accordingly, I am bound by it and base the present judgment upon the decision in Wrexham.
The defendants accept that the approach laid down by the Court of Appeal in that case is correct, subject to one proviso. Mr Willers would wish to submit that the Court of Appeal was wrong to rule that, if a traveller has retired permanently from travelling on grounds of ill health or age, then he no longer has a nomadic way of life and will have been deemed to have lost Gypsy status.
The question for me to consider is whether, taking the grounds in reverse order and adopting the approach laid down by Auld LJ in paragraph 57 of his judgment, the inspector failed to take into account relevant matters, or that he made an error of law and failed to give adequate reasons for his decision. The relevant matters for the inspector's consideration were whether the defendants were actually living a travelling life, whether seasonal or periodic in some other way, at the time of the determination. If they were not, then it was a matter of fact and degree whether the current absence of travelling meant that they no longer followed a nomadic way of life. It was conceded that they had formerly led such a lifestyle, so that the only question was whether they had abandoned it. On such an issue, it is relevant to consider whether the defendants do or do not come from a traditional Gypsy background (they clearly do) and whether they have or have not followed a nomadic way of life in the past (as they have). It is also relevant to consider, second, whether the defendants have an honest and realistically realisable intention of resuming travelling. If they do, how soon and in what circumstances? And third, the reason or reasons for the defendants not living a travelling way of life at the time of the determination and their likely determination.
Bearing this in mind, I examine the question whether the inspector can be shown to have failed to have taken any relevant matters into consideration. The key passage in the inspector's report is contained in paragraph 21. In that paragraph I conclude that the inspector considered the following matters. One, whether the defendant's family are ethnic Gypsies. Clearly the answer to that is, yes. Two, do they any longer travel? To which the answer is, no. Three, what is the reason for this? The lack of temporary sites is the answer, "They had only moved to the site when it became too difficult for them to live on the roadside". Four, do they intend to resume travelling? I quote again from the report, "They would like to do so, but are frustrated by the lack of temporary sites. It is clear that the effect of withholding planning permission would be for the families to return to a life on the road".
There was no evidence that the family had sought permanent housing. This suggests that they are not attracted by the idea of bricks and mortar and that they are not going to seek housing assistance. The inspector found that it was their wish to continue to live in caravans. Moreover, it is plain from paragraph 28 of his report that the inspector also considered relevant matters raised by the claimants in the contention that Gypsy status had been abandoned, that the families do not travel outside the area and that their employment is locally based. The inspector also noted that they visited annual Gypsy fairs. In an earlier paragraph (10), he had noted that the first defendant earned some money from the sale of craft items at these events.
In the light of these findings by the inspector, I am unable to agree with the contention expressed by Mr Costen in paragraph 15 of his statement, that the inspector did not address the reasons why the second defendant stopped travelling, her future intentions in respect of resuming travelling or her attitude towards living in a house. He clearly did address these matters and took them into account.
Furthermore, Mr Costen's assertions contained in paragraph 16 of his statement, that the second defendant had no future wishes or intentions to travel and never indicated a desire to resume travelling, are not borne out by the inspector's conclusions set out in paragraph 21 to which I have referred. Thus, although Mr Costen asserts that the second defendant had no future wishes or intentions to travel, and that she never indicated in evidence a desire to resume travelling, I find that the reverse is shown by the inspector's finding that the family would like to travel but are frustrated (ie unable and prevented from doing so) by the lack of temporary sites. It is clear that, when considering the relevant matters to which I have referred in paragraph 21, the inspector intended his conclusions to cover the case of the third defendant also.
Between paragraphs 39 and 43 of his report, the inspector gave proper and detailed consideration to the Gypsy status of the individual defendants. There can be no doubt that the inspector was well aware of the third defendant's desire to live in the day room on the advice of her doctor for the benefit of her children's health. He ensured, by the conditions imposed on the permission, that it should not be lived in on a 24—hour a day basis.
That brings me to the other ground of appeal, that the inspector made an error of law and failed to give adequate reasons for his decision. At paragraph 39, the inspector properly directed himself as to the definition of Gypsies and referred to three relevant authorities including the case of Wrexham which had not at that stage been considered by the Court of Appeal. It has not been shown to me that the inspector made any error of law. He...
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