R v South Glamorgan County Council and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCOTT BAKER,MR WATKINSON |
| Judgment Date | 27 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1127-5 |
| Date | 27 November 1997 |
| Docket Number | CO/510/95 |
| Court | Court of Appeal (Civil Division) |
[1997] EWCA Civ J1127-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2
Mr Justice Scott Baker
CO/510/95
and
MR P DIAMOND (instructed by Messrs David and Shape, Bridgend) appeared on behalf of the Applicant.
MISS M ELLIS (instructed by the Head of Legal and Administration, South Glamorgan County Council) appeared on behalf of the First Respondent.
MR D WATKINSON (instructed by Messrs Thorpes, Hereford) appeared on behalf of the Second Respondent.
Thursday 27th October 1997
Llangan is a tiny hamlet in the Vale of Glamorgan. On 20th December 1994 the South Glamorgan County Council granted itself planning permission so that Mr Carroll, the Second Respondent, who is a gypsy, could live with his family on a site some 230 metres to the east of the hamlet. The local inhabitants are up in arms. One of them, Mr Harding, has taken these judicial review proceedings claiming that the permission was unlawful and should be set aside. This would have serious consequences for Mr Carroll and his family who have been living in a caravan on the site on and off since the Spring of 1995.
The facts
Mr Carroll is a gypsy who has previously resided in various places in Glamorgan. He has 5 children, one of whom, an autistic son, goes to a special school in Aberkenfig. Another, a daughter, goes to Pyle Primary School. In 1991 he bought some land at St Mary's Hill which is close to Llangan but on the other side of the hamlet from the site with which this application is concerned. He applied for planning permission for a change of use to a gypsy caravan park for two permanent residential caravans and two tourers. Permission was refused by the Vale of Glamorgan Borough Council whose decision was upheld on appeal on 15 September 1993 on the grounds of rural development and traffic safety.
The inspector said that the site occupied an isolated position on elevated land remote from any settlement.
It had well developed hedgerows (including some trees) along three sides but the caravans would be seen from the roadway and elsewhere—particularly during the winter months. He equated gypsy caravans to residential development and observed that the underlying intent of the relevant policies was safeguarding the character of the countryside in accordance with paragraph 2.1 of
PPG 7. He said in the normal run of events the only housing development permitted in the open countryside is that for which an exceptional requirement could be demonstrated, such as the operational needs of a farm.
Before he moved on to this land, from which
Mr Carroll was eventually required to move by the Council's enforcement action, he had lived on a farm owned by Mr Thomas at Ruthin. This was on a site rented from him. On 1st October 1993 Mr Carroll launched another application in respect of the same site, this time for four caravans. The Council refused permission on 11th January 1994 and the appeal failed on 2nd June 1994. When the Inspector visited the site on 10th May he noted the presence of four large touring caravans grouped around an area of compacted hard core. The presence of these was, of course, in breach of planning control, for there had been no permission. The Inspector said in his decision letter that there was no convincing evidence to show that Mr Carroll had an overriding agricultural need to live in this particular spot. He said that granting permission would make it difficult to resist applications for housing on other open frontages to the north and elsewhere within the scattered pattern of settlement to the south.
It is of note that the First Respondent resisted the granting of permission and in doing so claimed that it had met the requirements of the Caravan Sites Act 1968 by providing two permanent gypsy sites in Cardiff.
The Inspector's conclusion was that on balance
Mr Carroll's personal circumstances and consequent hardship if the appeal did not succeed were outweighed by Section 54A of the Town and Country Planning Act 1990 which provides that all determinations under the Planning Acts are to be made in accordance with the provisions of the development plan, unless material considerations indicate otherwise. In ordering
Mr Carroll to pay the Vale of Glamorgan Borough Council's costs, the Inspector said he could see no material difference between the application then before him and that previously refused on appeal and that, in the light of paragraph 22 of the Welsh Office Circular 2/94, it should have been obvious that his proposals stood no realistic prospect of being approved by the Council. Paragraph 22 provides:
"As with any other planning application, proposals for gypsy sites should continue to be determined solely in relation to land use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural archaeological countryside environmental and green belt policies. The aim should always be to secure provision appropriate to gypsies accommodation needs while protecting amenities."
That is the background to the County Council's own application to grant itself planning permission for a 1.8 acre site at Llangan (O.S. No. 3869). The permission sought was a change of use from a County Council owned small holding to a single family traveller site. The application was made on 17th November 1994 and granted on 20th December 1994. Because of local government changes in South Wales the identity of the First Respondent has changed; there is now a unitary authority. The Vale of Glamorgan Borough Council has been subsumed into South Glamorgan County Council. One of the consequences of this in the present case is that the new unitary authority no longer seeks to support the decision of the old County Council to grant planning permission to itself. Another consequence is that after local government changes took place on 1st April 1996 the new authority produced a number of documents that throw considerable light on the circumstances in which permission was granted.
Leave to move was granted by Laws J on 22nd March 1995. The County Council, but not Mr Carroll, was served with the proceedings. The Applicant says he was not in occupation of the site at the time. The County Council filed evidence resisting the claim for judicial review but, following local government reorganisation on
1st April 1996, signed, on 1st May 1996, a consent order to the relief sought. By then Mr Carroll and his family were occupying the site and, following the consent order, steps were taken in the County Court to obtain a possession order against him. On 21st October 1996 Mr Carroll issued a summons to set aside the consent order. This was contested and heard by
Harrison J who, on 20th January 1997, set the order aside.
It is next necessary to look in a little detail into the circumstances leading to the grant of planning permission on 20th September 1994. On 29th September 1994 Ms Laura Woodruff, the Equal Opportunity Group Leader of the South Glamorgan County Council wrote to Ian Davies in the Property Services Department of the Council in these terms:
"Some months ago I received from the Vale of Glamorgan Borough Council a letter invoking the County Council's statutory duty of gypsy site provision in respect of a Mr Carroll who was at that time occupying his own land in the Vale without planning permission.
All subsequent efforts to identify a suitable site in the ownership of either local authority for which planning permission could be granted have failed. It appears therefore that in order to meet the statutory requirement to provide Mr Carroll with accommodation the County Council will need to acquire land and operate it as a gypsy site under the terms of the Caravan Sites Act 1968.
I should therefore be grateful if you would investigate what land is available for purchase and at what price within the following parameters:
in the area roughly bordered by Cowbridge, Bridgend, the M4 and the coast;
of between 1/2 acre and 1 acre
with adequate highway access and visibility
capable of being supplied with water (though not necessarily with an existing water supply).
reasonably level
I look forward to hearing from you."
There is no indication that Ms Woodruff appreciated that the relevant provision of the Caravan Sites Act 1968 was about to be repealed and replaced by the Criminal Justice and Public Order Act 1994. The effect of the change has been to replace the County Council's duty to provide adequate accommodation for gypsies with a power to do so. In response to Ms Woodruff's letter, Mr Davies carried out a comprehensive search and concluded that no suitable land was available for sale. He then turned his attention to land owned by the South Glamorgan County Council and identified as a possible site part of the smallholding owned by Mr Llewellyn who had previously indicated he might be prepared to surrender his interest. Mr Davies wrote to Ms Woodruff accordingly
on 28th October 1994 saying he could obtain vacant possession of the site at Llangan for £1,000.
The evidence indicates that thereafter there was no consideration of any other site.
Next there followed a meeting on 10th November 1994. The note of the meeting records the following as present; John Gorwill and Laura Woodruff (Personnel Services); Ian Davies (PSD), Gerry Phillips and Don Webber (Planning); Keith Jones (Highways); Paul Anderton (Legal). The note then goes on to record amongst other...
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