R (on the application of Dowling) v Secretary of State for Comunities and Local Government
|England & Wales
|MR JUSTICE DAVIS
|22 March 2007
| EWHC 738 (Admin)
|Queen's Bench Division (Administrative Court)
|22 March 2007
 EWHC 738 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Davis
MR NICHOLAS NARDECCHIA (instructed by Black Lapthorn Tarlo Lyons) appeared on behalf of the CLAIMANT
MR HEREWARD PHILLPOT (instructed by Treasury Solicitor) appeared on behalf of the 1ST DEFENDANT
MR MICHAEL RUDD (instructed by Bramwell Browne Odedra) appeared on behalf of the 3RD DEFENDANT
This is a claim brought by Mr Simon Dowling by proceedings issued on 14 June 2006 by way of appeal under section 288 of the Town and Country Planning Act 1990. The decision under challenge is a decision dated 3 May 2006, given by an inspector appointed by the First Secretary of State. That decision was, in substance, to grant planning permission to the applicant, Mrs Wendy Keet, who herself had been appealing against a previous decision of the Chichester District Council, whereby she had sought permission in respect of a proposed development of four mobile homes for gypsy families at Melita Nursery, Chalk Lane, Sidlesham, West Sussex.
It is of course elementary in the context of a case of this kind, although it is worth making clear for the benefit of those in court who are not familiar with the legal principles, that the decision-maker by statute here is the inspector. It is for him to make the findings of fact on the evidence that is before him, and for him to make his judgment by reference to his findings of fact. It is not for this court to, as it were, form its own view of what this court might or might not have done on the material before it. That is not the function of this court, and this court can only properly interfere with a decision on conventional public law grounds.
The decision letter very helpfully sets out the background in some detail, and it is worth setting out large portions of that decision letter. The inquiry itself sat for a period of three days on 21, 22 and 23 March 2006. Mr Dowling was himself present there. So also was Mrs Keet, along with advisers for her, and so also was the Chichester District Council, who had its own representatives. Evidence was given before the inspector, including evidence from Mrs Keet herself and from her brother-in-law, Mr Riley Keet. The inspector of course undertook a view of the particular site.
There is something of a background to this particular planning application because it appears that a number of mobile homes had been moved onto the site at some stage in February 2005. The Council instigated court proceedings against Mrs Keet and three other members of her family, including, so I was told, Mr Riley Keet, and indeed an injunction was made on 17 May 2005, which was upheld in the High Court in December 2005, requiring removal of the four mobile homes then on the site. Mrs Keet and the other defendants did not see fit to abide by those injunctions; but in the event, Mrs Keet submitted this application for planning permission in respect of the four mobile homes.
It should be made clear that there was no dispute before the inquiry as to the gypsy status of the appellant or the other members of her family who occupied the site. Today, and for the first time, at one stage Mr Nardecchia, counsel instructed on behalf of Mr Dowling, did by reference to proposed fresh evidence query the gypsy status of at least Mr Riley Keet. That was unfortunate to be mentioned on the basis of the material put forward, and it is only right to record that ultimately and, in my view rightly, that particular suggestion was withdrawn. Accordingly, the inspector was entirely justified in proceeding, as was common ground before him, on the footing that Mrs Keet and her family were gypsies as defined in Circular 01/2006.
In the decision letter, the inspector went on to refer to the relevant Structure Plan and policies. He made reference, amongst other things, to Policy RE2, Policy RE11A and Policy RE22, to which I will have to come on and deal with in due course.
The main issues, as summarised by the inspector were: first, the effect of the development on the character and appearance of the area; and second, whether any identified conflict with policy or any other harm was outweighed by other material considerations. The inspector then went on to give a description of the site. He noted that the site was within an area identified as an area of horticultural development in the Local Plan. The site itself was described as being roughly rectangular and as having an area of about 1.5 hectares. As described by the inspector, it was a redundant nursery, with a number of buildings, including a workshop, a store, some Dutch Light glass structures that were in very poor condition and a large aluminium glasshouse. The western part of the site was open and described by Mrs Keet as a paddock. The mobile homes in question were situated close to the northern boundary where there is also a two metre high fence separating the site from the horse paddock to the north. There was then a description of the trees that were in the area and of a nearby house. The general character of the surrounding area was, in the words of the inspector, "very mixed". He referred to a number of the small holdings in the area involving some rebuilding and some of that rebuilding having little or no association with any agricultural or horticultural uses. Many of the glasshouses in the area were described as being in poor condition, and it was said that there were also numerous small buildings in the immediate area as well as mobile homes and caravans, some of which were used as a temporary accommodation by agricultural workers. The inspector found that the site lay in a countryside location, and noted that whilst there were no policies in the Structure Plan that related specifically to gypsies, there were several that sought to protect the countryside. There were additional policies in the Local Plan that also related to countryside protection, but only Policy RE22 relating directly to gypsies.
He went on to record that it was agreed by the Council that if the development complied with the provisions of Policy RE22, then that would be sufficient to outweigh the cited policies in respect of the countryside. The inspector commented that that seemed reasonable as Policy RE22 included criteria that related to countryside protection. It was further agreed, as noted by the inspector, that if they did not comply with that policy, then the countryside policies would come into play.
It is perhaps convenient at this stage to refer to Policy RE22, which is headed "Sites for Gypsies". That sets out a number of criteria, but the only one relevant for the purposes of this particular appeal is criterion (1). On that basis, the relevant parts of Policy RE22 are these:
"Sites for Gypsies (defined as persons of nomadic habit of life) will only be permitted in the rural area when it can be demonstrated that the numbers of families who reside in or resort to the district need the number of pitches in the location sought, and provided that:
(1) they do not detract from the undeveloped and rural character and appearance of the countryside, particularly the areas of outstanding natural beauty …"
The inspector, having referred to that policy, then went on to note this in paragraph 13 of the decision letter:
"In respect of the remainder of criterion (1), under cross-examination the Council accepted that a fair interpretation was that it required that the development would not result in an unacceptable degree of harm. This seems to me to be a sensible interpretation; to argue otherwise would make the policy almost impossible to comply with."
The inspector then went on to deal with a further description of the site, including what he had noted on his own personal view. He went on to observe that the mobile homes were visible from the public highway, but that visibility was not the relevant test for this policy, and that in terms of the effect on the character of the area, it seemed to him that the structures were in accord with the prevailing character. So that was a finding that he made on the evidence before him.
He went on then to deal in paragraph 17 with the appearance of the area. He made various comments in that regard, and then having stated that the landscaping could be the subject of a condition, said this:
"I conclude that the development does not so unacceptably detract from the character or appearance of the area as to be contrary to Policy RE22 of the Local Plan."
He found that it would also meet the criteria set out in Annex E of Circular 01/2006.
Then in the decision letter, he went on to deal with matters under the heading "Other material considerations". In paragraph 18 he said this:
"While I have found that the development does not unacceptably impact on the character and appearance of the area, it is also necessary to consider the development in terms of the opening sentences of Policy RE22. These relate to local connections and need."
He then went on to make certain findings in that regard. He referred to the acceptance that there was some need for sites for gypsies. He made various other observations. He noted that in that particular case before him, four pitches were being sought by four members of the same family group and, as the inspector found, they all currently lived on...
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Green on behalf of the Friends of Fordwich & District v Secretary of State for Communities & Local Government
...the decision maker's intentions in a plainer way. 41 A similar approach was followed by Davis J in Dowling v Secretary of State  EWHC 738 (Admin). Davis J stated, at paragraph 28: “Such condition is not designed to and does not have the effect of expanding or enlarging the planning pe......