R Thomas George CLARKE v Secretary of State for Transport Local Government and The REGIONS/

JurisdictionEngland & Wales
JudgeMR JUSTICE BURTON
Judgment Date09 October 2001
Neutral Citation[2001] EWHC 800 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date09 October 2001
Docket NumberCO/1844/2001

[2001] EWHC 800 (Admin)

IN THE HIGH COURT OF JUSTICE

(THE ADMINISTRATIVE COURT)

QUEEN'S BENCH DIVISION

Before:

Mr Justice Burton

CO/1844/2001

Thomas George Clarke
and
The Secretary of State for the Environment
Transport and the Regions
and
Tunbridge Wells Borough Council

MR M WILLERS (instructed by Lance Kent and Company, Chesham, Buckinghamshire HP5 1EG) appeared on behalf of the Claimant.

The First Respondent did not appear and was not represented.

MR R GROUND ( MISS J BOYD for judgment only)appeared on behalf of the Second Defendant.

Tuesday, 9th October 2001

MR JUSTICE BURTON
1

The Appellant, Mr Thomas Clarke, who appeals under section 288 of the Town and Country Planning Act 1990 (the 1990 Act) against the decision taken by a Planning Inspector appointed by the First Respondent, the Secretary of State for the Environment, Transport and the Regions, is a Romany Gypsy, as are his wife and children. The family lives on land owned by the Appellant known as OS Plot 4462, Wisley Pound, Sissinghurst, Cranbrook in Kent. On 28th March 2001 the First Respondent's Planning Inspector dismissed the Appellant's appeal against a decision by the Tunbridge Wells Borough Council, the Second Respondent, to refuse him planning permission to use such land as a site on which to station a caravan for residential use by himself and his family as Gypsies.

2

By section 54A of the 1990 Act, an application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the Local Development Plan unless material considerations indicate otherwise, and of course the same principle applies on appeal to an Inspector. There is a circular issued by the Department of Environment number 1/94, so far as England is concerned, which provides the following at paragraphs 5 onwards:

"5.'Gypsies' are defined in section 16 of the 1968 Act [that is the Caravan Sites Act 1968] As "persons of nomadic habit of life, whatever their race or origin". References to gypsies in this Circular are references to gypsies in that sense. The term does not include members of an organised group of travelling showpeople or circus people, travelling together as such. Planning advice relating to travelling showpeople is given in DoE Circular 22/91…

6. Gypsies make up a tiny proportion of the population of England and Wales, but their land-use requirements need to be met. Many gypsies are self-employed people, sometimes occupied in scrap and scrap-metal dealing, laying tarmacadam, seasonal agricultural work, casual labouring, and other employment associated with their itinerant lifestyle. The gypsy community also includes groups of long-distance travellers who nowadays earn their living mainly from trades such as furniture dealing, carpet selling and other related occupations. Local planning authorities need to be aware of the accommodation and occupational needs of gypsies, having regard to their statutory duties, including those in respect of homelessness under Part III of the Housing Act 1985.

13. As a rule it will not be appropriate to make provision for gypsy sites in areas of open land where development is severely restricted, for example, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest, and other protected areas. Gypsy sites are not regarded as being among those uses of land which are normally appropriate in Green Belts. Green Belt land should therefore not be allocated for gypsy sites in developed plans."

3

The land in question in this case lies in the High Weald Special Landscape Area. The Special Landscape Areas are abbreviated as SLAs. They fall short, so far as protection is concerned, of Green Belt, but are regarded as equivalent to the other protected areas mentioned in the Circular, and are obviously of considerable importance to the public, so far as the protection of the environment is concerned.

4

As I have indicated, this is an appeal under section 288 of the 1990 Act against the refusal of such planning permission by the Inspector. Mr Willers, representing the Appellant, has put forward the case on his behalf. His primary argument has been that the Inspector acted in breach of Article 8 of the European Convention on Human Rights, now a part of English law as a result of the Human Rights Act 1998. Article 8, dealing with the right to respect for private and family life, reads as follows:

"(1) Everyone has a right to respect for his private and family life, his home and his correspondence

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

5

In fact, on analysis, the case for the Appellant did not simply rest on breach of Article 8, but on breach of a combination of Articles 8 and 14. Article 14, which is headed: "Prohibition of discrimination" does not provide a self-standing right or cause of action to the citizen or litigant. What Article 14 does is inform, strengthen and expand other rights which are the subject of independent existence such as Article 8. Article 14 reads as follows:

"The enjoyment of the rights and freedoms set fourth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

6

The Appellant's case is that the Inspector, in breach of Articles 8 and 14, took into account in his planning decision the previous offer by the Respondent to the Appellant and his family of conventional housing accommodation. The relevant parts of his decision are in paragraphs 18 and 21 of the Decision Letter, dated 28th March 2001. After setting out, in considerable detail, to which I shall return, the important detrimental planning effects of the possibility of this land being used by way of permanent residence, the Inspector turns to what he calls the Appellant's personal circumstances:

"18. The appellant argues that his personal circumstances are equally relevant. It is accepted that the Council has offered permanent accommodation, but Mrs Clarke, who also has close family in the area, has never lived in a conventional house and found the prospect distressing."

7

Then at 21 he says:

"It is unfortunate, in my view, that the appellant felt unable to accept the offer of permanent housing. However, it is not unknown for gypsy families to find that such accommodation would represent an unacceptable change in their lifestyle, and I have no reason to doubt the evidence of Mrs Clarke in that respect. On the other hand, I do consider that the offer of that accommodation does detract somewhat from the appellant's contention that the only alternative to the appeal site has been an illegal roadside pitch. It is also relevant to note that, on the evidence, the offer (by the High Weald Housing Association) was for a property in Benenden which is only a short distance from Cranbrook."

8

Mr Willers submits that in taking into account those matters the Inspector took into account what he calls "irrelevant considerations". In fact on analysis Mr Willers' case is that in reality the Inspector has taken into account an impermissible consideration, that is one that is legally, as opposed to factually, irrelevant. It is difficult to see how it cannot be said to be relevant, in consideration of the personal circumstances of an Appellant for planning permission, that there could be available somewhere else for that person to live if the planning permission were refused. The real thrust of Mr Willers' submission is that by taking that matter into consideration the Inspector was in breach of Articles 8 and 14, and took into account matter which was, in the circumstances, impermissible or indeed unlawful for him to take into account.

9

The Appellant's secondary case is that even if he were to fail on the first proposition, such that it were not the case that the Inspector erred in taking into account such considerations, the Inspector's decision to refuse planning permission plainly interferes with or affects the Appellant's right to his private and family life and his home, and that this court is obliged, by section 6 of the Human Rights Act, to look again at the Inspector's decision in order to be satisfied that there has been no breach of the Convention.

10

The most central parts of the Inspector's decision are as follows: In paragraph 8, which is headed "Visual impact of the Use":

"I therefore turn to the visual impact of the use and, again, the conclusions of the previous Inspector are important because there has been no subsequent change in development plan policies. He took the view that what he described as the attractive open countryside of the locality extends to the roadside in the gap which includes the appeal site and that its undeveloped rural character is in sharp contrast to the suburban appearance of the opposite frontage. It was found that, although the hedge provides some screening, the front boundary fence and the top of the mobile home above it, were open to view and gave a clear perception that the site is in residential use, which would be emphasised by the various forms of domestic activity. Given the site's location within a SLA, my colleague concluded that the development had...

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4 cases
  • Codona v Mid-Bedfordshire District Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 15 July 2004
    ...she can station his or her caravan. He relied by way of analogy on some words of Burton J in a planning case, Thomas Clarke v. SOSETR [2001] EWHC Admin 800, which concerned an Article 8 challenge by a gypsy averse to conventional "bricks and mortar" accommodation, to a planning authority's ......
  • Green on behalf of the Friends of Fordwich & District v Secretary of State for Communities & Local Government
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 February 2010
    ...a person lives in a caravan may be a factor in determining whether he is a gypsy (see per Burton J in Clarkev Secretary of State [2001] EWHC Admin 800, paragraph 32) . That, if I may say so, is obviously right. Plainly it is capable of being a relevant factor. But Burton J was not holding t......
  • R (Price) v Carmarthenshire CC
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 24 January 2003
    ...Mr Justice Burton in Clarke v The Secretary of State for the Environment, Transport and Regions and Tunbridge Wells Borough Council [2001] EWHC Admin 800 [2002] JPL 552 and the same case in the Court of Appeal [2002] EWCA civ 819 [2002] JPL 86. In the case of Clarke, Mr Justice Burton had......
  • R Thomas George CLARKE v Secretary of State for Transport Local Government and The REGIONS/
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 May 2002
2 books & journal articles
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    • United States
    • Emory University School of Law Emory International Law Reviews No. 28-1, January 2014
    • Invalid date
    ...See supra Introduction; supra Part I.C.4.174. Clarke v. Sec'y of State for Transp., Local Gov't & Regions & Tunbridge Wells BC, [2001] EWHC (Admin) 800 (Q.B.), [2002] J.P.L. 552 (U.K.); Home, supra note 154, at 539.175. Home, supra note 153, at 539 (2009) (citing Clarke, [2001] EWHC (Admin)......
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    • Wiley The Modern Law Review No. 69-5, September 2006
    • 1 September 2006
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