First Secretary of State & Ors v Chichester District Council [2004] EWCA Civ 1248

[2004] EWCA Civ 1248

Case No C1/2003/1818

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

THE HONOURABLE MR JUSTICE BLACKBURNE

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/09/2004

Before

THE RIGHT HONOURABLE LORD JUSTICE AULD

THE RIGHT HONOURABLE LORD JUSTICE WALL

THE HONOURABLE MR JUSTICE PUMFREY

Between

1) THE FIRST SECRETARY OF STATEAppellants

2) GRANT DOEAppellant

3) GREGORY YATESAppellant

4) PAUL EAMESAppellant

CHICHESTER DISTRICT COUNCILRespondent

Mr Tim Mould (instructed by Treasury Solicitor) for First Appellant

Mr David Watkinson (instructed by Community Law Partnership) for Second, Third & Fourth Appellants

Mr Richard Langham (instructed by Sharpe Pritchard) for Respondent

Hearing Hearing dates : 24 th March 2004

Judgment

[1]This an appeal by the first defendant (“the First Secretary of State”) and the second, third and fourth defendants (“the applicants”) against an order of Blackburne J on 29th July 2003 under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”), quashing the First Secretary of State’s appointed Inspector’s decision to grant planning permission to the applicants for use of land at Clearwater, Ratham Lane, West Ashling, Chichester as a private gypsy site with mobile homes and associated outbuildings. The Inspector had also granted planning permission to similar effect to the mobile home owners on three planning applications deemed to have been made by the in accordance with section 177 of the 1990 Act in the course of enforcement proceedings taken by the claimant, Chichester District Council (“the Council”) as local planning authority.

[2]The appeal raises three issues, only one of which is of any substance in the sense that it affects the outcome of the appeals, namely whether the Inspector was correct in determining that the Council, by refusal of the planning permissions and issue of enforcement proceedings, had violated the applicants’ rights under

Article 8 of the European Convention

of Human Rights (“ECHR”,) to respect for their private and family life and their home. The other two issues are associated, but largely academic. They are: whether the Inspector did and/or should have found that the development breached a particular policy of the applicable Structure Plan; and whether he erred in law in failing to identify and/or explain the material considerations that he found weighed in favour of the grant of planning permission to one of the applicants, Mr Eames. The Judge held that the Inspector had erred in law on all three grounds.

[3]The First Secretary of State and the applicants appeal on the ground that the Judge wrongly found fault with the Inspector’s decisions on all three issues. The site and planning policies.

[4]In about 1999 one of the applicants, Mr Yates, bought the appeal site. He and the other two applicants, Mr Doe and Mr Eames, subdivided it into three main plots, and, without notification to the Council or application for planning permission, they began to lay it out with services for future residential use. Eventually, they moved their mobile homes and caravans onto the site and began to live there. The Yates and Doe families, who had a close association with the Chichester District, moved there from a County Council site where they had been experiencing difficulties. Mr Eames, who had a strong attachment to them and had travelled with them from time to time, seemingly moved there from somewhere else in West Sussex.

[5]The appeal site is a triangular shaped area bounded to the east by a lane and to the west by a stream. As I have said, it is divided into three main plots, two, each housing a mobile home and a touring caravan, and the third, a touring caravan. There is a further strip of land on the site providing access to the three plots from the lane. The site lies in the countryside outside, but quite close to one or more well-defined settlement areas and with a good range of local facilities. It is reasonably well screened from distant views by various copses of trees and tall hedges, and is about 150 metres from a major road, the A27. The Inspector described it in paragraph 33 of his decision letter, as “close to few dwellings and largely hidden from view”. The site does not fall within an area subject to any special designation by reference to its landscape qualities; it not within a Green Belt or other designation of land where the policy is strongly to resist development; it is not in an area of recognised nature conservation value or archaeological or historic value. In short, as the Inspector described it, in paragraph 66 of his decision letter, it is “ordinary countryside afforded the least degree of protection”.

[6]Consideration of the applicable National and local planning policies must take into account the move by the Government from the obligation imposed on County Councils by Part II of the Caravan Sites Act 1968 to provide caravan pitches to its replacement, as a result of amendments made by the Criminal Justice and Public Order Act 1994, to reliance on gypsies to provide their own sites assisted by national and local planning policies requiring local authorities, in the exercise of their planning function, to have regard for their special needs.

[7]Departmental Circular 1/94 – “Gypsy Sites And Planning” – revised the previous guidance so as to take account of the repeal of Part II of the 1968 Act and to encourage gypsies to secure their own sites making use of the planning process where necessary and appropriate. In paragraph 6, it stated that the land-use requirements of this tiny proportion of the Country’s population “need to be met” and that local planning authorities “need to be aware of” their accommodation and occupational needs”. Paragraph 9 stated that once the statutory obligation on local authorities to provide pitches had gone, they should make adequate provision in their development plans “through the appropriate use of occupational and/or criteria-based policies”. Paragraph 14 indicated that local planning authorities might consider locations outside existing settlements, “provided that care …[was] taken to avoid encroachment on the open countryside”. And in paragraph 22, the Circular indicated, in the case of gypsies, the balance to be drawn between traditional land-use factors and their interests:

“As with any other planning applications, 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 amenity.”

[8]In 1997 the Department revised its PPG7, providing, in paragraph 2.3, for strict control of development in “the open countryside, away from existing settlement or from areas allocated for development in development plans” - the greater the landscape, wildlife or historic qualities of the countryside, the greater the priority to be given to the restraint.

[9]The Development Plan relevant to the appeal site consisted of the approved West Sussex Structure Plan of July 1993, which preceded the change in the law removing the obligation on County Councils to provide gypsy caravan pitches, and the adopted Chichester District Local Plan, First Review of April 1999, which took into account the Circular 1/94 obligation “to make adequate provision for” gypsies in local development plan policies.

[10]The Inspector, in paragraphs 21 and 22 of his decision letter, correctly identified the two main relevant provisions of the Structure Plan. The first is G1, which, consistently with paragraph 2.3 of PPG7, requires strict control of all development outside existing or potential built up areas defined in local plans- “Outside such areas development is to be strictly controlled, subject only to limited exceptions allowed for in other policies.” The second was C1, which the Inspector described as the ethos of the Structure Plan policy for the countryside:

“The Planning Authorities will seek to protect the countryside for its own sake from development which does not need a countryside location, and will ensure that the amount of land taken for development is kept to the minimum consistent with the provision of high quality and adequate space within the built environment. Development will not normally be approved outside built up area boundaries unless it is for quiet informal recreation or related to essential needs of any of: agriculture, forestry, the extraction of minerals, the deposit of waste or the implementation of policy H6 [i.e. social housing outside, but usually adjoining, built-up area boundaries where there is a proven local need]. Permission will not normally be given for the extension of isolated groups of buildings or the consolidation of linear or sporadic development.” “The Planning Authorities will seek to protect the countryside for its own sake from development which does not need a countryside location, and will ensure that the amount of land taken for development is kept to the minimum consistent with the provision of high quality and adequate space within the built environment. Development will not normally be approved outside built up area boundaries unless it is for quiet informal recreation or related to essential needs of any of: agriculture, forestry, the extraction of minerals, the deposit of waste or the implementation of policy H6 [i.e. social housing outside, but usually adjoining, built-up area boundaries where there is a proven local need]. Permission will not normally be given for the extension of isolated groups of buildings or the consolidation of linear or sporadic development.”

[11]The Structure Plan makes specific provision for gypsies in Policy H7, which was still, as Mr Tim Mould, for the First Secretary of State put it, rooted in the 1968 duty on County Councils to provide pitches. It provided:

“While permission may be granted for the establishment by gypsies themselves of caravan sites in suitable locations, further provision by the Local Authorities will be considered only in the light of demonstrated need.”

The note to Policy H7 specifically referred to the impending change in the law: 5.31. West Sussex, as a designated county under the Caravan Sites Act 1968, has met the Government requirement to make provision for gypsy caravan pitches. However, Government legislation has been suggested which may change the situation, and the position will be monitored. The Council wishes sites to be in locations with convenient access to schools and health services and with a basic infrastructure available

[12]The Chichester District Local Plan, First Review of 1999, only permitted development in the area in which the appeal site is situated in accordance with specified policies in the Plan, one of which is RE22 “Sites for Gypsies”. In outline, and as a reflection of the revised guidance given in Circular 1/94, in particular paragraphs 9 and 22, it permits such sites in rural areas “only 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” a number of other criteria are satisfied. These include criterion (1) that “[t]hey do not detract from the undeveloped and rural character and appearance of the countryside, particularly the areas of outstanding natural beauty” and: criterion (8) that “[t]hey are sited on reasonably flat land, provided that the proposals do not create visual encroachment into the open countryside.”

[13]The Inspector’s decision letter of 14th January 2003 identified, in paragraph 25 two main issues before him, as agreed by the parties, namely: the effects of the development on the policy aims of protecting the character and appearance of the countryside around Ratham Lane; and if those effects would be harmful, whether such harm would be outweighed by other material considerations, including the fact that the applicants are gypsies, any need for gypsy sites in that part of West Sussex and

Article 8 of the ECHR

[14]Although the Article 8 issue is by far the most important in these appeals, I consider it helpful to set the planning scene by dealing first with the other two.

[15]This issue, so far as it goes, is whether the Inspector did and/or should have found that the proposed development would breach the Structure Plan Policy C1.

[16]The Inspector, at paragraphs 27 to 28 of his decision letter, found that, as the appeal site lay in the countryside and, in particular, outside built up area boundaries, it did not “technically” fall within any of the exceptions in Policy C1 of the Structure Plan. However, he found some tension between that policy, considered on its own, and the wider context, including the provision in Policy H7 for the grant of permission “in suitable locations” for private gypsy sites, stating at paragraph 28 of his decision letter:

“… Policy H7 refers only to ‘suitable locations’ for private gypsy sites, a phrase which is not defined. It is thus impossible to deduce from the policy where gypsy sites should be located, apart from some guidance in paragraph 5.31 of the supporting text. [i.e. convenient access to schools, health services and basic infrastructure] ….which the site plainly has. …”

[17]In terms of Government Policy, he noted the changes that had occurred since the adoption of the Structure Plan. “Furthermore, the Structure Plan was approved at a time when Government Policy on gypsy sites was inclined very much towards local authority provision. Though paragraph 5.31 presages the changes introduced by Criminal Justice and Public Order Act 1994 and the Policy advice of Circular 1/94, the Structure Plan does not address those changes because they post-date its approval. In these circumstances, though the Council’s argument is technically correct, that the letter of Policy C1 does not allow for the establishment of gypsy sites in the rural area, that alone is not conclusive. Rather, it is the purpose behind the policy which have to be given particularly careful consideration, together with the changes to Government policy since 1994.”

[18]The Inspector went on to find that in that wider context – the Development Plan as a whole and Government Policy, including Circular 1/94, paragraph 14, and PPG7 - the fact that the appeal development was strictly contrary to Policy C1 begged the question whether it should now be necessarily be seen as contrary to the ethos or underlying aim of strategic policy for the countryside. In paragraphs 29 to 31 he examined that question and concluded that, in the light of subsequent changes in government policy on the location of gypsy sites in rural areas, a proposal to locate such a site in the West Sussex countryside should not necessarily be seen as in conflict with the underlying aims of Policy C1, i.e. to limit development in the countryside to that which needs to be located there. It is clear, however, that he regarded the appeal development as a breach of the terms of Policy C1.

[19]The Inspector then turned to policy RE22 in the local plan permitting the establishment of gypsy sites in rural areas where there is a demonstrated need for them, which he found reasonable as a criteria-based policy and in accord with the aim of PPG 7 of protecting the countryside for its own sake. However, he found that there was a conflict between the clear aim of that policy and the Council’s operation of it in practice:

“32. … the policy does not operate in isolation but in the context of applications by gypsies for private sites, which is the method of provision now encouraged by Government policy. According to the Council’s planning witness, since the introduction of Policy RE22 some three years ago, no gypsy site has been approved within the district. That in itself is by no means conclusive of the reasonability of the policy in practice, but it was evident from the witness that the reason for this record was that all applications were in the countryside. Furthermore he considered that the only sites which could meet the criteria of the policy would be those marginal sites which would be seen as the backdrop to the built up area and which did not encroach on the countryside. 33. Thus is would appear that in practice the Council’s interpretation of Policy RE22 is one where only sites close in to built up areas, or within small groups of dwellings in the countryside and not defined as SPAs are considered acceptable. Those beyond, whether in countryside with special sensitivity, such as the AONBs, or in what might be termed ‘ordinary’ countryside, are considered to be in breach of the policy criteria. Such an interpretation is not considered reasonable or realistic because it conflicts with the advice of paragraph 10 of Circular 1/94. … 34 Perhaps more significantly the Council’s interpretation of Policy RE22 also appears to conflict with paragraph 249 of the supporting text to the Local Plan, which is expressly referred to by the policy. That paragraph recognises that some sections of the community have special needs resulting from occupation, disability or through their chosen lifestyle. It goes on to explain that these requirements mean that in some cases exceptions have to be made to the Plan polices, for example policies relating to the general restraint of development in the rural area. … 35 But the evidence to this inquiry appears to demonstrate that in practice there is a conflict between the Council’s implementation of Policy RE22 and the expressed aims of both the Circular and the policy as adopted. …. Accordingly it is concluded that the criteria of RE22 should be applied to the appeal site, without any assumption that this gypsy development is inherently unacceptable in the rural area.”

[20]Following that analysis of the relevant policies and his finding of the Council’s operation of them, he found, at paragraphs 36-38, by reference to the criteria, including (1) and (8), of Policy RE22, that the proposed development would cause some, but little, harm to the undeveloped and rural appearance of the countryside and that such harm could, in any event, be largely mitigated by by planting. In paragraph 39 of the decision letter, the Inspector drew together the various points on policy against the backcloth of the aim in PPG7 of protecting the countryside for its own sake:

“…That aim is important but it has to be seen in the context of the advice in Circular 1/94 that the needs of gypsies have to be met and that rural and semi-rural settings for sites may be appropriate. The PPG itself makes no specific reference to gypsy site provision, and given that Circular 1/94 pre-dates it, but that its advice on such sites is not amended or cancelled by PPG 7, it is concluded that the Circular advice should enjoy greater weight in these gypsy cases. Bearing that in mind, and having regard to all the above considerations, it is concluded that the development causes, and in the case of the planning appeal would cause, some harm to the character of the countryside around Ratham Lane in the light of the aims of … Policy RE22. This harm therefore weighs against permission and accordingly it is appropriate to consider whether there are any material considerations which outweigh that harm.”

[21]In the light of that finding, which is in part confirmatory of his earlier expressed view that the proposed development would breach Structure Plan Policy C1/94, it is plain that, whether he regarded it as a technical breach or of some materiality, it did not affect his threshold planning decision that the proposal would cause some planning harm.

[22]The Judge found that there was a clear breach of Policy C1. He viewed the Inspector as in error for failing explicitly to note this. He regarded the Inspector’s approach as a misreading of the terms of the Policy. He said, at paragraph 15 of his judgment, that the Inspector had incorrectly found that the proposed development was not a material, as distinct from a technical, breach of Policy C1 “… He was entitled to find that other material considerations (including subsequent Department of Environment policy guidance and the other factors to which he drew attention … led to a conclusion that policy C1 should be disregarded. … But that was not how the inspector was approaching matters. He was not acknowledging a clear breach of policy C1 but finding that it was justified by other considerations. Rather he was finding that, given what he described as ‘the underlying aims of the policy’, there was no breach. But … he should have proceeded on the basis that the development was in breach of the policy, as in my view it clearly was. To that extent … the inspector fell into error ...”.

[23]Mr Mould submitted that the Inspector was entitled to approach Policy C1 as he did. He was obliged, by section 70(2) of the 1990 Act, to have regard to the relevant policies of the development plan and, by section 54A of the Act, to determine the appeal in accordance with the development plan unless material considerations indicated otherwise. However, provided that he recognised the priority to be given to the development plan, the Inspector was entitled to adopt the process of analysis which seemed to him to be appropriate to the circumstances of the given case: R v Leominster District Council ex parte Pothecary 76 P&CR 346 at 352-353.

[24]The Inspector had expressly accepted the Council’s case that the appeal development was contrary to the terms of Policy C1. However, that in itself was not necessarily decisive of the merits of the development. It was necessary to consider whether there were factors that indicated that, although the appeal scheme was not among those limited categories of development specifically identified in Policy C1, there were good reasons for departing from the strict letter of the policy. On a fair reading of his decision, that is the approach adopted by the Inspector. In particular, it was plainly relevant to take account of subsequent changes in national planning policy indicating that gypsy sites may need to be located in the countryside, since it is need for a countryside location that provides the underlying rationale for the control of development imposed by Policy C1. So Circular 1/94 was logically relevant to the overall question whether, as the Council contended, Policy C1 should be read as raising an objection of principle against the appeal development. He submitted that the Inspector was entitled to base his rejection of that contention upon the contents of more recent, relevant national planning policy guidance, which is directed specifically at identifying appropriate locations for gypsy sites through the planning process and following the repeal in 1994 of the statutory duty to provide County Council sites. In other words, in applying the Structure Plan, the Inspector was entitled to take account of the fact that it did not reflect the current statutory and national policy framework; and to seek to make good that shortcoming by reference to the relevant locational guidance given in the up to date, relevant national planning policy guidance document. That is what he did. He added that, even if the Judge was right to find that the Inspector had erred in his approach to Policy C1, the Inspector’s decision should be allowed to stand. The Inspector’s overall conclusion that planning permission was merited in this case would have been unaffected by any more clear finding that the development was in breach of Policy C1.

[25]Mr David Watkinson, on behalf of applicants, advanced much the same arguments in support of the reasoning of the Inspector in this respect. He submitted that the Judge erred in finding that the Inspector had proceeded on the basis that the proposed development would not breach Policy C1. He said that the Inspector had clearly accepted, at paragraphs 27 to 28 of his decision letter, that there would be such a breach. He added that it was important to keep in mind that the Inspector, in considering Policy C1, was doing so in the context of the first of the two broad issues he had identified, namely as to the effects of the proposed development on the character and appearance of the countryside in the vicinity of the appeal site. He said that, once the Inspector had acknowledged the breach, he was entitled to consider it in the context of the other policies and guidance as part of his consideration of all material factors.

[26]However, Mr Richard Langham, on behalf of the Council, supported the Judge’s view and reasoning that the Inspector erred in finding that the proposed development would not be in material, as distinct from technical, breach of Policy C1. He said that the relevance of that to the Inspector’s final decision was that, it skewed his approach to the subsequent and necessary question whether other material considerations justified a material breach. Consideration of such matters should follow a correct application of the Policy itself, and the Inspector did not correctly apply the Policy. However, along with Mr Mould and Mr Watkinson, he acknowledged that even if the Inspector had expressly found the breach of Policy C1 to be a material, it is unlikely that he would have given it much weight.

Conclusion

[27]The Judge saw force in the arguments of Mr Mould and Mr Watkinson, given the directly relevant policy RE22 of the Chichester District Local Plan, which, as I have said, permits, subject to stringent criteria, the establishment of gypsy sites in rural areas of the Chichester District. It was the Inspector’s clear conclusion that Policy RE22 itself raised no objection in principle to the use of the appeal site for a gypsy caravan site. Policy RE22 reflects not only the relevant policies of the Structure Plan, including Policy C1, but also the Secretary of State’s more recent policy on the provision of gypsy sites as stated in Circular 1/94. In these circumstances, the Inspector’s finding that the development was not objectionable in principle under the relevant Local Plan Policy would not have been affected by a finding that the County-wide Structure Plan Policy was breached.

[28]In my view, and as the Judge said at paragraph 38 of his judgment, if the Inspector’s view of the breach of Policy C1 had been the only issue, it could not sensibly affect the outcome of the appeal whether he regarded the breach of Policy C1 as technical or material. However he expressed himself, it is plain that he regarded the location of the proposed development in this rural area as causing only slight planning harm. I would, therefore, uphold this ground of appeal, so far as goes, directed at the Judge’s finding on this issue.

Issue 2 – Personal circumstances - Mr Eames

[29]This issue, again for what it is worth, is whether the Inspector clearly explained the material consideration weighing in favour of Mr Eames’ case for planning permission.

[30]As I have indicated, the Inspector, in his decision letter, considered both the general need for sites in the Chichester District and each of the applicants’ personal circumstances. As to the former, he concluded, at paragraph 49 of his decision letter, after comparing the outcome of supply and demand analyses for gypsy sites in the Chichester District, that the evidence before him plainly demonstrated that the applicants had deployed a compelling case on the aspect of need.

[31]The Inspector considered separately the extent to which each individual applicant was able to point to personal considerations that also weighed in favour of his case for planning permission. He considered the personal circumstances of each of the applicants in turn. He dealt first with Mr Yates and Mr Doe and found, at paragraphs 50 to 59 that family ties and educational/cultural factors and their close association for some years with the Chichester District weighed in favour of their appeals.

[32]In relation to Mr Eames, the Inspector found, at paragraphs 61, 62, 70 and 72, that, on the evidence, such personal circumstances – family ties and cultural factors – did not apply, or not to the same extent. However, he found that, as a single man, Mr Eames would be unlikely to obtain any pitch that might become available within the County as a whole, on account of his low status in the County Council’s allocations policy. He regarded that as a factor adding weight to Mr Eames’ case. This is how he summed up his position in paragraph 72 of his decision letter :

“In the case of the enforcement appeal by Mr Eames it is concluded that the material considerations of the need for gypsy sites in the District, his personal circumstances, including his gypsy status, and the interference with his Article 8 rights which would arise from the refusal of permission are sufficient to outweigh the limited harm to the aims of planning policies seeking to protect the character of the countryside arising from the stationing of his caravan on this land….”

[33]The Judge, at paragraphs 30 and 31, said that he was unclear as to what exactly the Inspector had found weighed in Mr Eames’ favour.

Submissions

[34]Mr Mould submitted that the Inspector’s approach to the issues of need and personal circumstances correctly reflects the approach of the High Court in Hedges and Hedges v Secretary of State for the Environment and East Cambridgeshire District Council 73 P & CR 534, per Gerald Moriarty, QC, sitting as a Deputy High Court Judge, at 545. Both were material considerations capable of adding weight to the case of planning permission. Neither Mr Mould nor Mr Watkinson could see any uncertainty in the Inspector’s decision on this issue. They pointed to the clear references in the decision letter to the particular difficulties Mr Eames would have, as a single man, in obtaining a pitch, even if one was available, on a Council site in West Sussex due to allocations criteria. The distinction between the general and the personal is clear, as is the separate and complementary significance of each factor. These points are reflected in the Inspector’s reasoning.

[35]Mr Langham, on behalf of the Council, suggested there was considerable uncertainty as to what additional personal circumstances the Inspector was weighing in Mr Eames’ favour, since, although he was part of the demand for gypsy sites, the area applicable in his case was the wider area of West Sussex rather than the Chichester District and the only “additional factor” resulting from that was the likely difficulty for him, as a single man, in obtaining a County Council pitch.

Conclusion

[36]In my view, Mr Mould and Mr Watkinson are correct in their submissions that the Inspector made perfectly plain the additional consideration that he had in mind in the case of Mr Eames. In any event, as Mr Watkinson observed the Inspector identified a number of factors in favour of his application, including the shortage of gypsy sites in the District and the County and the likely difficulty for him in obtaining a pitch on a Council site in West Sussex. In my view, it follows that the Inspector explained adequately for the purpose his approach to the questions of general need and personal circumstances and why both were material considerations weighing in Mr Eames’ favour. I would reject the Judge’s criticisms of the Inspector on this account and, so far as it goes, uphold this ground of appeal.

Issue 3 – Article 8 ECHR –Chapman v UK

[37]The issue is whether the Judge correctly approached the question whether the Council’s refusal of planning permission and issue of enforcement proceedings violated the applicants’ rights under

Article 8 ECHR

to respect for their private and family life and home and, the effect one way or another on the balancing exercises respectively required by section 54A of the 1990 Act and Article 8.2.

[38]It is common ground that Article 8 was engaged in the sense that the applicants’ right to respect for their homes and family lives was capable of becoming a material consideration, that is, it was “at issue”, just as the European Court found in Chapman v. United Kingdom

(2001) 33 EHRR 18

, at paragraph 74, that Mrs Chapman’s right to respect for her private family life and home was at issue. But it was not common ground that the refusal of planning permission and upholding of enforcement notices would necessarily constitute an interference with those rights, still less whether such an interference would be justified under Article 8.2.

[39]The Inspector, having found, as I have said, that the proposed development would cause only slight planning harm, then considered, pursuant to section 54A of the 1990 Act, other “material considerations” arising from the evidence before him. These considerations included, in addition to an unmet need for gypsy sites in the Chichester District, the personal circumstances of the applicants, and those circumstances included their deliberate settlement on the appeal site without prior notification to the Council or seeking planning permission and the potential of the Council’s decisions for rendering them homeless and possible violation of their Article 8 rights.

[40]As to the former, the Inspector said, at paragraph 54 of his decision letter, that, though the applicants’ conduct could not be condoned, two of the families had “a cogent reason” for leaving a County Council site and that their development of the appeal site was not “wholly in conflict with the present Government policy of encouraging private site provision by gypsies”. In short, he concluded that this aspect of their personal circumstances did not weigh heavily against their case.

[41]As to the impact of the Council’s refusal of planning permission and upholding of the enforcement notices on the Article 8 rights of the applicants, he noted the Council’s acceptance before him that it would engage Article 8.1, and found, at paragraph 65, on a balance of probabilities that “the harm arising from interfering with their right to a home could potentially affect any of the … [applicants] and would be substantial”.

[42]He then immediately turned to the issue of justification under Article 8.2, which, for convenience, I set out here, before rehearsing his treatment of it:

“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.”

[43]As the Inspector observed, it was common ground that the enforcement action taken by the Council accorded with the law. As to necessity for the interference, in this case to protect the environment from harm from the unauthorised proposed development, the Inspector described it, as I have said, as “ordinary countryside afforded the least degree of protection”, and concluded that there was, therefore, less of a pressing social need to keep it undeveloped than there would have been if it were more highly protected land. He added that such necessity for the avoidance of harm as there was would reduce if planting controls were imposed as a condition of development.

[44]Finally, and importantly, the Inspector turned to the particular vulnerability and needs of the applicants as gypsies and the implications for his decision of Chapman, in which the Court had held, inter alia, that the public authorities are not obliged to provide an adequate number of gypsy sites. He reasoned nevertheless that, as in his view, the development would do only limited harm to the environment, and the Council had failed properly to implement its local policy RE22 to permit the establishment of gypsy sites in rural areas where there was a demonstrated need for them, the applicants’ Article 8.1 rights weighed heavily in their favour. This is how he put it in paragraphs 69 and 70 of his decision letter:

“69. Account has been taken of the Council’s argument that the judgment in Chapman found that the United Kingdom government was not under an obligation to provide an adequate number of gypsy sites. But paragraph 9 of Circular 1/94 says that repeal of the statutory duty of local authorities under the 1968 Act to provide gypsy sites makes it all the more important that local planning authorities make adequate gypsy site provision in their development plans. In this case the Council has not demonstrated that it has a sound statistical basis for its conclusion that there is no need for any new gypsy site, despite saying that it accepts there is a small unmet need. Furthermore the Council has not granted a single planning permission for a private gypsy site since their Local Plan was adopted in 1999, and the only private gypsy sites in the District all appear to have been granted on appeal, that is following refusal of permission in the first instance by the Council. That situation, coupled with the Council’s interpretation of the Local Plan gypsy policy, RE22, appears to have ensured that in practice there is little credible prospect of any private gypsy site being permitted by the Council. This conclusion has to be seen in the context of the need for sites in the District, Policy RE22 and paragraph 249 of the Local Plan, and the Government policy in Circular 1/94 which makes it clear that the needs of gypsies must be met. “70. Against this background the limited harm caused to the environment, and hence to the public interest, by the appeal development has to be weighed against the serious harm to the appellants arising from the failure to recognise and provide for the needs of gypsies in the District by granting permission for sites. It is concluded that in this case that limited harm does not constitute a pressing social need for the interference with Article 8(1) rights of all the appellants which would result from the upholding of these notices. Moreover, by leading to a situation where there is a high probability that at least one of the appellants would lose their present home for a significant period, such interference would be disproportionate. For these reasons, and because the Council has not convincingly established why the interference is necessary, it is concluded that it is unacceptable. Thus the human rights arguments weigh heavily in favour of the appellants.”

[45]Like the Judge, I take the last sentence of paragraph 70 of the decision letter to be a finding that to uphold the enforcement notices would constitute an unjustifiable interference with the applicants’ Article 8 rights.

[46]The Judge dealt quite shortly with that reasoning of the Inspector, holding that he had effectively put the Council under an obligation to exercise its planning powers to provide an adequate number of gypsy sites within its area. He said at paragraph 36 of his judgment:

“36. … although in paragraph 69 the inspector noted that the United Kingdom Government was not under any obligation (by virtue of article 8) to provide an adequate number of gypsy sites, he, in effect, held that article 8 carries with it a duty on the Council, as the relevant local planning authority, to exercise its planning powers to help achieve that end in its area. In my judgment the article imposes no such an obligation. The inspector was wrong to think as he did.”

[47]The Judge went on to hold, at paragraphs 37 and 38, that, in a matter so fundamental as the correct approach to Article 8 and, having regard to the weight the Inspector gave to it, the Inspector’s decision could not stand. He, therefore, quashed the decision and remitted the matter to the Secretary of State for reconsideration.

[48]Mr Mould, whose submissions on this issue Mr Watkinson adopted, appears to have approached the issue on the basis that, as Article 8 was “engaged”, to refuse planning permission and uphold the enforcement notices would necessarily constitute an interference with the applicants’ rights under Article8.1 and, therefore, that the only question was and is whether the interference was, in the circumstances, justified in the terms of Article

8.2 Mr Mould submitted that the Judge, in paragraph 36 of his judgment, had wrongly credited the Inspector with holding that Article 8 obliged the Council to exercise its planning powers so as to fulfil a general obligation to provide an adequate number of gypsy sites in its area regardless of availability. He maintained that the Judge overlooked the fact that a finding of a breach of Article 8 in a particular case does not amount to an acceptance of a general duty to provide sites and that the Inspector had not so decided here.

[49]Mr Mould, submitted that it is clear from paragraphs 69 and 70 of the Inspsctor’s decision letter that he was there engaged on the only live issue under Article 8, namely one of the Chapman balancing exercise under Article 8.2. He maintained that the Inspector carried out the exercise in an exemplary way, deciding as a result that enforcement of planning control in the circumstances would be disproportionate. He said that, the Inspector acknowledged that an inadequate supply of sites to meet the needs of gypsies did not of itself give rise to a breach of Article 8, but nevertheless, he gave, and was entitled to give, weight to the fact that, notwithstanding Government planning policy in Circular 1/94, the Council had failed to provide for the needs of the gypsy community through the development plan process.

[50]He submitted that the Government’s planning policy is that land-use requirements of gypsies should be met through the planning process and that local planning authorities, such as the Council, should seek to make adequate provision of gypsy sites through the development plan process, either through the identification of suitable sites or through criteria-based policies. He maintained that the planning policy in Circular 1/94 reflects that positive obligation towards the gypsy community in recognition of their particular land-use requirements, identified by the European Court in paragraph 96 of Chapman as “a positive obligation … by virtue of Article 8 to facilitate the gypsy way of life”.

[51]Mr Mould said that, in deciding whether there was an Article 8.2 justification in this case, the Inspector was entitled to take account of that planning objective and to attach weight to the fact that this Council had failed to meet it, with the result that gypsies’ accommodation needs in this district have become more pressing. That fact was a relevant consideration in deciding whether the Council had justified its interference with these gypsies’ Article 8 rights in the circumstances of this case.

[52]It followed, he submitted, that the Inspector was bound to determine whether it was a proportionate interference with the applicant’s Article 8 rights for the Council to evict the applicants in all the circumstances of this case. In doing so, the Inspector was entitled to take account of the limited environmental harm caused by the presence of the caravan site in this location and to balance that limited harm against the factors that weighed in the gypsies’ favour. The latter properly included the fact that the Council had, on the Inspector’s findings, failed to fulfil its role, as local planning authority for Chichester, in pursuing the Government’s planning policy objective of seeking to meet the accommodation needs of gypsies. He submitted that, for those reasons, the Judge wrongly held that the Inspector’s approach conflicted with Chapman, and placed an unwarranted constraint upon the fulfilment of the Government’s positive obligation through the planning process.

[53]Mr Watkinson added that the fact there is no general duty to provide a home does not mean that there cannot be particular instances in which a decision preventing the establishment or maintenance of a home through the planning process would breach Article 8. He submitted that if the Court were to uphold the reasoning of the Judge it could wrongly inhibit planning authorities and inspectors from granting planning permission in an appropriate case under threat of a challenge that, in holding that Article 8 can in such circumstances impose such a duty, they have acted contrary to Chapman.

[54]Mr Langham prefaced his submissions on behalf of the Council with the observation that a decision-maker, in assessing whether a decision, in this case, refusal of a proposed development, would violate Article 8, must first understand the content of the Article8.1 right before considering whether it is justifiable under Article

8.2 and proportionate. He submitted that the Inspector, in paragraph 69 of his decision letter, was dealing with Article 8.1, not 8.2. He pointed out that the Inspector began it by acknowledging that effect of Chapman is that public authorities are not obliged to provide an adequate number of gypsy sites, but then, without reference to matters of justification, turned it into a general obligation “that the needs of gypsies must be met”. He submitted that the Judge correctly read the Inspector’s treatment in that paragraph as contradicting Chapman. This is not, said Mr Langham, the language of justification of the violation by reference to particular material factors in the case, but a mistaken view of the primary Article 8 right. Given such an error, he submitted, it is not surprising that the Inspector found the justification proffered by the Council insufficient and, apparently, that Article 8 would be violated.

Conclusion

[55]The first question for an inspector is to determine whether a proposal is in material breach of planning policy. If it is, he should, in accordance with section 54A of the 1990 Act, determine the matter in accordance with the plan unless other material considerations indicate otherwise. Those other material considerations may include, as here, the personal circumstances and needs of the applicants, which in turn may include any Article 8 rights bearing on the issue. However, before embarking on the balancing exercise required by section 54A of the 1990 Act and that of Article 8.2 it is necessary to identify clearly, on the one hand, whether and to what the extent the proposal is not in accord with local planning policy, and, on the other, the exact content of any countervailing material factors, including in cases like these, the Article 8.1 rights, if any, capable of being interfered with. The content of the Article 8.1 right in this context is a positive obligation upon United Kingdom authorities to facilitate the gypsy way of life, by giving special consideration to their needs and nomadic lifestyle both in the regulatory planning framework and in reaching decisions in particular cases. It is not, as the Inspector appears to have concluded in paragraph 69 of his decision letter, an obligation on such authorities to make available to the gypsy community an adequate number of suitably equipped sites to meet their needs either generally or in individual cases.

[56]As I have said, it was and is common ground that Article 8 was engaged in the sense that the applicants’ right to respect for their homes and family lives was capable of becoming a material consideration. But it was not common ground that the refusal of planning permission and upholding of enforcement notices would necessarily constitute an interference with those rights, still less whether such an interference would be justified under Article 8.2. There is a difference between the “engagement” of Article 8 and the question whether there has been an interference with whatever form the Article 8 right takes in any individual case. Only if there is such interference, does the balancing exercise under Article 8.2 arise for consideration.

[57]This three stage test was expressly acknowledged by the European Court of Justice in Chapman. The Court, first, in paragraphs 71 to 74 under the heading “A. As to the rights in issue under Article 8 …”, concluded that they were in issue, i.e. the Article was engaged. The Court, secondly, in paragraphs 75 to 78, under the heading “B. Whether there was an ‘interference’ with the applicant’s rights under Article 8 …”, seemingly relied on the United Kingdom Government’s acceptance that there had been such an interference as a result of the local authority’s refusal of planning permission and the taking of enforcement measures, and it declined to consider in the abstract whether the framework legislation and planning policy and regulations disclosed a lack of respect for her Article 8 rights. Instead, it said, its task was “to examine the application of specific measures or policies to the facts of each individual case”. And without further reasoning on those facts on this issue, it found, in paragraph 78, that, “[having regard to the facts of …[the] case” the planning authorities’ decision “constituted an interference with … [Mrs Chapman’s right to respect for her private life and home within … Article 8.1”

[58]The Court then proceeded to its third question, namely whether the interference was justified within the provisions of Article 8.2. However, it was in the context of that question, not the second, that the Court established, in paragraphs 111-113 that, on the facts of the case, the refusal of planning permission would not render Mrs Chapman homeless. And it was in the context of the third question that the Court turned to generality in stating: 1) at paragraph 96, that gypsies are not immune from general laws intended to safeguard the environment; 2) at paragraph 98, that a decision “in itself, and without more” not to allow gypsies to occupy land where they wished” would not “constitute ... a violation [i.e. an unjustified interference] of Article 8”; 3) also in paragraph 98, that there is no general “obligation by virtue of Article 8 to make available to the gypsy community an adequate number of suitably equipped sites”; and 4) in paragraph 99 “that Article 8 does not in terms give a right to be provided with a home”.

[59]So Chapman still leaves us with the question whether, in any individual case, refusal of planning permission and enforcement action against a gypsy caravan dweller is capable of amounting to an interference with an Article 8 right. Before deciding whether there has been such an interference, a fortiori, whether it amounts to a violation of the right in the sense of not being justifiable within Article 8.2, it seems to me vital to determine the content of the right in any individual case, something that the Court did not do, or have to do, in Chapman, leaving the whole issue to be swept up in an Article 8.2 balance.

[60]I acknowledge that it is not always easy to identify the Article 8 right that is said to be the subject of the alleged interference, shorn of the circumstances applicable to the Article 8.2 exercise, as both Strasbourg jurisprudence and a recent decision of this Court have illustrated. See e.g. Botta v Italy

(1998) 26 EHRR 241

, ECtHR; Dehnalova and Zchnal v Czech Republic (14 May 2002); and Anufrijeva & Ors v SSHD 2003 EWCA 1406, per Lord Woolf CJ, giving the judgment of the Court, at paras 9-38. But where, as in this context, the European Court has clearly and firmly said in Chapman, that Article 8 does not confer an entitlement to provision of a home, planning inspectors should not effectively reverse that general proposition when considering, first, whether there has been an interference with an Article 8 right in the circumstances of the case. In my view, Mr Langham correctly submitted that the Inspector should have confined his finding in paragraph 69 of his decision letter as to the nature of the Article 8 right, namely a right of the applicants to “respect” in the sense of a qualified right not to have their existing private and family life and home interfered with. He should not have converted it into the broader proposition that the needs of gypsies “must be met”.

[61]However, the exercise undertaken by the Inspector in paragraphs 69 and 70 was to draw on the United Kingdom’s policy guidance in paragraph 9 of Circular 1/94, the Local Plan Policy RE22 and his finding that the Council had seemingly failed correctly to apply that policy in other cases. He then did what the European Court in Chapman expressly declined to do, namely hold that “the needs of gypsies must be met”. And, in paragraph 70, he referred to the Council’s failure “to recognise and provide for the needs of gypsies in the District by granting permission for sites”. As Mr Langham put it, in those paragraphs the Inspector exaggerated or miscast the right, so as to equate shortage of gypsy sites as in itself a violation of - an interference with - some quite different and invalid notion rejected by the European Court in Chapman.

[62]The exercise undertaken by the Inspector, in his consideration of Article 8.2, was to balance the weight of the breach of planning policy and its resultant harm to the environment – i.e. the seriousness of the planning harm - against other countervailing material, in particular the personal circumstances and needs of the applicants including any interference with any Article 8 rights and the seriousness of such putative interference. In my view, his misreading of the nature of Article 8 rights in this context put him at risk of wrongly finding that the Council’s decisions in issue interfered with the applicant’s such rights, and, in any event, of wrongly placing too much weight on such interference, as he found it to be, in his Article 8.2 balance and in its effect on the balance of planning considerations required by section 54A.

[63]Accordingly, I would uphold the Judge’s ruling on this issue. Although I am not as confident as he was that the error of the Inspector went to the heart of his decision to grant the applicants, including Mr Eames, planning permission, the point of principle is likely to be of great general importance whenever Article 8 is brought into play in such a context. I would, therefore, direct that the matter be remitted to the First Secretary of State for him to reconsider this issue. In doing so, I may perhaps be permitted to make the following comment. In a case like this where the planning harm caused by the development is said to be weak and the countervailing material considerations, including the personal circumstances of the applicants, are said to be strong, recourse to Article 8 may add little but unnecessary complication to the balancing exercise required for the planning decision by section 54A of the 1990 Act.

[64]I have had the opportunity to read Auld LJ’s judgment in draft. Whilst I am in full agreement with him in his conclusions on the first two issues raised by this appeal (namely;(1) The effect on the character and appearance of the countryside / Whether the proposed development conflicted with planning policy (paragraphs 15 to 28 of his judgment); and

(2) The personal circumstances of Mr. Eames (ibid paragraphs 29 to 36)), I find myself in respectful disagreement with him on the third and critical issue in the appeal, namely the inspector’s approach to

ECHR Article 8

. In my judgment; (a) the inspector did not make any error of law in his application of Article 8 to the circumstances of this case; (b) the judge was wrong to find that he did; and (c) the appeal should accordingly be allowed, and the decision of the inspector restored.

[65]Save where references to them as individuals are required, I propose to refer to Messrs Doe, Yates and Eames collectively as “the Appellants” and to the First Secretary of State by that title. I will refer to Chichester District Council as “the Council”.

[66]I do not share Auld LJ’s view that the inspector misidentified the nature of the rights enjoyed by the Appellants under

ECHR Article 8

to which respect was due. The words of Article 8(1) are familiar, but bear repetition: - Everyone has the right to respect for his private and family life, his home and his correspondence.

[67]At the risk of appearing simplistic, it seems to me that the Article 8 analysis properly runs along the following lines. The caravans which the Appellants had placed on the land belonging to Mr. Yates were their homes (also, in the cases of Messrs Doe and Yates the homes of their respective wives and children and, in the case of Mr. Eames his partner’s home). Under Article 8(1) the Appellants had a right to respect for their homes (leaving out of account, for present purposes, their right to respect for their private and family lives). Self-evidently, however, that right was, in the circumstances of the case, subject to the qualifications imposed by Article 8(2). The Appellants’ homes had been placed on land, which, although it was owned by Mr. Yates, did not have planning permission for the caravan dwellings placed on it. Their right to respect for their homes was, accordingly, subject to legitimate attack from the State. The State, in the form of the Council, sought to interfere with their Article 8(1) rights by enforcement notices requiring them to remove the caravans and vacate the site. That interference was plainly in accordance with the law. The Article 8 question for the inspector was, accordingly, whether or not the interference was necessary for any of the reasons identified in Article 8(2), and, if it was, whether the implementation of enforcement notices requiring the Appellants and their dependants to vacate the land was a proportionate response to the identified objective.

[68]In my judgment, this analysis (which also seems to me to be the one adopted by the inspector) is entirely consistent with the decision of the European Court of Human Rights (ECtHR) in Chapman v United Kingdom

(2001) 33 EHRR18

(Chapman). Mrs. Chapman was a gypsy who purchased a piece of land with the intention of living on it in a mobile home. Over a period of many years and after numerous inquiries and appeals, the course of which it is not necessary for me to catalogue, the local planning authority made a final attempt to require her to remove her home from the land. After a planning inspector had dismissed her latest appeal against the refusal of her planning application, the case reached the ECtHR. The ECtHR identified Mrs. Chapman’s rights under

Article 8 of ECHR

in the following way: -71. The applicant submitted that measures threatening her occupation in caravans on her land affected not only her home, but also her private and family life as a gypsy with a traditional lifestyle of living in mobile homes, which allow travelling. She refers to the consistent approach of the Commission in her own and similar cases (eg Buckley v United Kingdom

(1997) 23 EHRR 342

72. The Government accepted that the applicant’s complaints concerned her right to respect for home and stated that it was unnecessary to consider whether the applicant’s right to respect for her private and family life was also in issue. (My emphasis).

73. The Court considers that the applicant’s occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate the education of their children. Measures, which affect the applicant’s stationing of her caravans, have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition. 74 The Court finds therefore that the applicant’s right to respect for her private life, family life and home are in issue in the present case.

[69]This was the basis on which Article 8 was engaged in Chapman. The Government accepted that there had been “an interference by a public authority” with Mrs. Chapman’s right to respect for her home. This interference was identified as “the refusal of planning permission to allow her to live in her caravan on her own land and the pursuit of enforcement measures against her” (paragraph 75 of the judgment). It was common ground that the interference was in accordance with the law (paragraph 79). The Court found that the interference pursued a legitimate aim, which it identified as “protecting ‘the rights of others’ through preservation of the environment” (paragraph 82). The critical question, accordingly, was whether the interference was “necessary in a democratic society”. This, in classic human rights language, involved considering whether it answered a pressing social need and was proportionate to the legitimate aim pursued (judgment paragraph 90).

[70]Whilst I see powerful arguments for distinguishing Chapman on the facts (apart from anything else, Mrs. Chapman had put up her caravans in the Green Belt) I see no reason for departing from the framework by means of which the ECtHR identified the constituent parts of Article 8 in that case. In my judgment, the inspector followed the Chapmanstructure in his approach to the issue, and was right to do so.

[71]In paragraph 32 of his judgment, the judge identified the issue: - The Council accepted that to uphold the enforcement notices would involve an interference with the appellants’ Article 8(1) rights. Instead, it argued that the circumstances of the interference and the requirement to protect the environment justified the interference under Article 8(2).

[72]The judge then summarises paragraphs 64 to 69 of the inspector’s decision letter as “a careful review to determine whether, on the facts, the admitted interference with the appellants’ Article 8(1) rights constituted by the refusal of planning permission and the consequent upholding of the enforcement notices, was necessary. The judge then set out paragraphs 96 to 100 of the ECtHR’s decision in Chapman and paragraphs 69 and 70 of the decision letter, which Auld LJ has set out at paragraph 44 of his judgment, and which I need not repeat.

[73]The paragraphs from Chapman, which the judge recited, dealt with the extent to which a positive obligation was imposed on Contracting States by virtue of Article 8 to facilitate the gypsy way of life. The ECtHR recognised that “the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which …[had] not been achieved” (paragraph 97). However, the ECtHR on to say: -98. The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised gypsy sites, the decision not to allow the applicant gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislation in regard to protection on minorities, that Article 8 can be interpreted to involve such a far reaching positive obligation of general social policy being imposed on States.

99. It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision. 100 In sum, the issue for determination before the Court in the present case is not the acceptability or not of a general situation, however deplorable, in the United Kingdom in the light of the United Kingdom’s undertakings in international law, but the narrower one whether the particular circumstances of the case disclose a violation of the applicant, Mrs. Chapman’s right to respect for her home under

Article 8 of the Convention

(my emphasis).

[74]The judge picks up on the final sentence of paragraph 70 of the decision letter. This reads: “Thus the human rights arguments weigh heavily in favour of the Appellants” and continues: - I take the last sentence of paragraph 70 to be a finding that the upholding of the enforcement notices would indeed constitute an unjustifiable interference with the Appellants’ Article 8 rights. 36. It seems to me that, as Mr. Langham submitted, although in paragraph 69 the inspector noted that the United Kingdom Government was not under any obligation (by virtue of Article 8) to provide an adequate number of gypsy sites, he, in effect, held that Article 8 carried with it a duty on the Council, as the relevant local planning authority, to exercise its planning powers to help achieve that end in its area. In my judgment, the Article imposes no such an obligation (sic). The inspector was wrong to think that it did.

[75]With great respect to the judge, I do not think the inspector was doing what the judge says, or importing into Article 8 considerations outlawed by Chapman. To explain why I have reached that view, however, it is necessary to look once again at the whole of the inspector’s decision-making process on the Article 8 issue.

The inspector’s approach to the Article 8 issue

[76]In what seems to me (as someone with only a limited experience of planning law) a careful, thorough, manifestly independent and well reasoned decision letter, the inspector prefaced his consideration of the Article 8 issue with these words: - 63. The Council accepted that, to dismiss these appeals so that the enforcement notices come into effect would result in the appellants losing their homes on this land and that this would constitute an interference with their right to respect for their home and private and family life under

Article 8(1) of ECHR

. It is therefore considered that in all three appeals, Article 8 is engaged. That being so, under paragraph 2 of Article 8, it has to be established whether that interference is, firstly, in accordance with the law, and secondly, necessary in a democratic society in the interest of the economic well-being of the country (which includes the preservation of the environment) or for the protection of the rights and freedoms of others. In the light of the judgments in Cremieux v France

(1993) 16 EHRR 357

and Chapman it is acknowledged that the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them in a given case convincingly established, and that the interference must correspond to a pressing social need and be proportionate to the aims pursued.

[77]As a self-direction, I find that impossible to fault. My only criticism is that the inspector has a tendency to use the passive when he means himself. I take it, therefore, that when he says:

“it is therefore considered that in all three appeals Article 8 is engaged” in paragraph 63 of the decision he means, “I consider that Article 8 is engaged”

. Similarly, I take “it is acknowledged that” later in the paragraph to mean, “I acknowledge that”.

[78]In paragraph 64 of the decision letter, the inspector records the fact that it was not in issue between the parties to the appeal that the taking of enforcement action by the Council was “in accordance with the law”. The argument, accordingly, was about whether the interference is necessary, and whether the action proposed by the authority is proportionate. The inspector records the Appellants’ argument that the effects of enforcement would be disproportionate because the harm to the extended family group would be increasingly serious, whereas the harm to the environment would not be great.

[79]In the balance of paragraph 64 and in paragraph 65, the inspector discusses the appellants’ circumstances and concludes that: - … the coming into effect of the notices would, on the balance of probabilities, deprive at least one of the appellants of their homes for a significant period. The length of that period without a secure home and those who would be affected cannot be determined with any degree of certainty. In these circumstances it is concluded that the harm arising from the interference with their right to a home could potentially affect any of the appellants, and would be substantial.

[80]In my judgment, those conclusions were manifestly open to the inspector on the evidence, and I do not see how they could be challenged.

[81]In paragraph 66 of the decision letter, the inspector discusses the Council’s argument that the interference was necessary in order to protect the environment from the harm caused by the unauthorised and proposed development. He concludes that there will be some harm to the environment if planning permission is granted. However, he contrasts the instant case with the facts of Chapman and points out that the land under consideration is not subject to any special designation due to its exceptional landscape qualities. It is not in the Green Belt. He describes it as “ordinary countryside afforded the least degree of protection”. He adds: - That is not to devalue its role as open land or the policies, which seek to protect it, but to establish its place within the hierarchy of protection from development given by the planning system. Thus it is land which the public can reasonably expect to remain free from development, but on which when development permission is sought, the weight of argument which needs to be deployed to gain permission is less than in the case of other land subject to higher levels of protection. It follows that the pressing social need for the appeal site being kept undeveloped is correspondingly less than would be the case with more highly protected land.

[82]Once again, speaking for myself, I find that conclusion unexceptionable. In paragraph 67, the inspector points out that the harm to the public interest can be reduced on a continuing basis by the imposition of suitable planting conditions, so that in the end the harm would be, not to the landscape itself, but only to the character of the area and the need to prevent development in the countryside. He describes these as “matters of some, but not the greatest, weight” and considers that this conclusion is not undermined by the fact that the appellants established themselves without first seeking planning permission. He refers back to Chapman and says: - Firstly, as the Council pointed out, in Chapman the ECtHR said that it would be slow to grant protection to those who established their home on an environmentally protected side in conscious defiance of the law. But the degree of harm caused to the environment is a matter for the national authorities, as the ECtHR acknowledged, and it would seem to be reasonable to expect that, where this harm is less, the degree of protection would increase accordingly.

[83]In paragraph 68 of the decision letter, the inspector turns to the position of the appellants as gypsies. He says: - Secondly, the appellants in these appeals are members of a particular and vulnerable minority, whose needs for a home are recognised in planning policy and Government advice. In this case both the advice in Circular 1/94 and in Policy RE22 and paragraph 249 of the Local Plan acknowledge that private gypsy sites may be appropriate in rural locations where the need for such homes can be established. Given that only about 23% of the rural area of the District is not subject to special designation, the amount of land where only limited harm would be caused by the establishment of any gypsy site is strictly limited. Thus because the appeal site occupies part of that quantum there would seem to be no reasonable prospect of another site coming forward in the rural part of the District with fewer planning constraints.

[84]In paragraphs 69 and 70 of the decision letter (set out by Auld LJ in paragraph 44 of his judgment) the inspector, as it seems to me, discusses the Council’s performance of its obligations under paragraph 9 of Circular 1/94 to make adequate gypsy site provision in their development plans. He finds it wanting. He concludes that, “in practice there is little credible prospect of any private gypsy site being permitted by the Council”. He comments that this conclusion has to be seen in the context of a number of factors, including Government policy in Circular 1/94 which, he says, “makes it clear that the needs of gypsies must be met”.

[85]In paragraph 70 of the decision letter, the inspector concludes his balancing exercise. His conclusion is that the harm to the environment is outweighed by the harm to the appellants “arising from the failure to recognise and provide for the needs of gypsies in the District by granting permission for sites”. Furthermore, the interference would be disproportionate. The Council has not convincingly established why interference is necessary. He concludes with the sentence: “Thus the human rights arguments weigh heavily in favour of the appellants”.

[86]With great respect to the judge, I simply cannot read the inspector’s decision letter in general and paragraphs 69 and 70 in particular as identifying within Article 8 and thus imposing on the Council a non-existent and impermissible duty to exercise its planning powers to help achieve the end of providing an adequate number of gypsy sites.

[87]The point, which stands out, to my mind, is that the context of paragraphs 69 and 70 is the Article 8(2) balancing exercise. The inspector is weighing in the balance the factors, which, on the particular facts of the case, support the Council’s interference, and those, which weigh against it. Accordingly, all the inspector was doing, in my judgment, was identifying the policy considerations contained particularly in Circular 1/94 and pointing out that the Council’s interpretation of the policy meant, in practice, that there was “little credible prospect of any private gypsy sites being permitted by the Council”. This, in my judgment, was an entirely legitimate conclusion for the inspector to draw from the evidence, and an entirely legitimate factor for him to place in the balance when considering the relative strengths under Article 8(2) of the competing considerations of legitimate interference, proportionality and the likely hardship suffered by the appellants as a consequence of enforcement.

[88]At its highest, it seems to me that what the inspector was doing, was pointing out that in his judgment, and on the evidence he had heard, the Council had not made adequate provision for gypsies in accordance with national policy, and that this was a factor which he was entitled to weigh in the Article 8 equation as pointing in the Appellant’s favour. The matter can be tested by looking at the converse. Had there been an abundance of Council sites for gypsies in the area, this would plainly have been a material factor in the Article 8(2) equation, and would have weighed strongly in favour of interference.

[89]In my judgment, this assessment of the inspector’s reasoning is reinforced by the language of Circular 1/94, from which the inspector is quoting. Paragraph 9 reads: - After the proposed repeal of this duty (the duty under the Caravan Sites Act 1968 to make adequate provision for gypsies residing in or resorting to their areas) local planning authorities should continue to indicate the regard they have had to meeting gypsies’ accommodation needs. Repeal of the statutory duty will make it all the more important that local planning authorities make adequate gypsy site provision in their development plans, through appropriate use of locational and/or criteria based studies

[90]It is plain that the inspector thought that the Council had not followed that guidance. That was a conclusion, which was open to him. I can see no error of law in his approach. He was not stating that the Council had a duty of the kind contradicted by Chapman.

[91]It follows that in my judgment, the First Secretary of State has made out his first four grounds of appeal, which I am content to incorporate into this judgment as part of my reasoning: - 1. The learned judge was wrong to conclude that the inspector had misinterpreted and misapplied

ECHR Article 8

. 2. The inspector’s approach was correct and in accordance with the principles established by the ECtHR in Chapman. 3. The inspector was bound to determine whether it was proportionate for the Council to evict the gypsies in all the circumstances of this case, in order to decide whether the Council could justify its admitted interference with the gypsies’ right to respect for their homes and private life under

Article 8(2) of the Convention

. He was entitled to take account of the limited environmental harm caused by the presence of the caravan site in this location; and to balance that limited harm against the factors that weighted in the gypsies’ favour. The latter properly included the fact that the Council had, on the inspector’s findings, failed to fulfil its role as local planning authority for Chichester, in pursuing the national planning policy objective of seeking to meet the accommodation needs of gypsies. That policy objective is set out in paragraphs 6 to 12 of Circular 1/94 “Gypsy Sites and Planning”. The fact that Article 8 does not oblige the United Kingdom to accommodate every gypsy on a site of his choice does not prevent the First Secretary of State setting out the planning objective in Circular 1/94. Nor does it prevent him (through his appointed inspector) attaching weight to the fact that this particular local planning authority has failed meet that policy objective (with the result that the accommodation needs of gypsies in Chichester have become more pressing) when he decides whether the Council has justified its interference with these gypsies’ rights under Article 8 in the circumstances of this case. 4. This is the correct approach following Chapman. The inspector took that approach and the learned judge was wrong to find fault with him for the reasons he gives in paragraph 36 of his judgment.

[92]As I indicated in paragraph 66 above, the principal point at which I respectfully part company with Auld LJ is in his identification (or rather in his interpretation of the inspector’s identification) of the nature of the Article 8(1) rights enjoyed by the Appellants. My understanding of Blackburne J’s judgment is that the Council accepted before him that to uphold the enforcement notices would involve an interference with the appellants’ Article 8 rights - see paragraph 32 of the judgment set out at paragraph 71 above. The question, therefore, was justification under Article 8(2).

[93]For the reasons, which I have attempted to give, the inspector in my judgment did not, as Auld LJ suggests, convert the appellants’ qualified Article 8 rights to respect for their homes into the broader proposition that “the needs of gypsies must be met”. In my view, the Article 8 rights in this case are not (and were not perceived by the inspector to be) the non-existent “rights” as gypsies to be provided with a home or a site for a home by the State. The rights were to respect for the homes, which they had created – homes admittedly created in breach of planning laws. The Council’s legitimate action in issuing enforcement notices was an interference with those rights, and the question for the inspector was whether, under Article 8(2) the interference was justified and proportionate.

[94]As I have already stated, the fact that the Council was in breach of the Guidance with the consequence that there was little credible prospect of any private gypsy site being permitted by the Council (as the inspector was entitled to find) was, in my judgment, a factor in the Article 8(2) balance which the inspector was entitled to take into account. The inspector did not, in my judgment, elevate the Council’s breach of the policy into an impermissible breach of non-existent Article 8(1) rights enjoyed by the appellants.

[95]For all these reasons, I would allow this appeal.

[96]Three challenges are advanced to the decision of the learned judge in this case. i) The inspector was right to take the approach that he did in the light of the decision of the ECtHR in Chapman v United Kingdom

(2001) EHRR 18

, and the learned Judge was wrong to fault him in this regard in paragraph 36 of the judgment; ii) The inspector was entitled to approach Mr Eames’s deemed application for planning permission in the manner that he did, and in particular was entitled to take into account the fact that Mr Eames was unlikely by reason of his personal circumstances to become entitled to obtain any pitch that did become available in the county; and iii) The inspector was entitled to find that there were good reasons for departing from the strict letter of Structure Plan Policy C1, and the Judge should not have criticised the inspector, whose approach was consistent with that approved by this Court in R (Pothecary) v Leominster DC

(1998) 76 P&CR 346

[97]I have had the opportunity of reading the judgments of Auld LJ and Wall LJ in draft. I respectfully agree with their conclusions on the second and third issues, but in agreement with Wall LJ I consider that the learned Judge was incorrect on the Art 8 point. I shall express my reasons as concisely as I can.

The position of the individual appellants

[98]The individual appellants respectively occupy Plots A, B and C at the appeal site. Plot A contains a twin unit mobile home occupied by Mr and Mrs Doe and their baby. Plot B also contains a twin unit mobile home, and is occupied by Mr and Mrs Yates and their daughter. Mrs Yates and Mrs Doe are sisters, and the families intend that the common grandparents, the Golbys, should move to a fourth proposed pitch at the site which is the subject of an appeal under section 78 of the 1990 Act. Mr Eames and his partner occupy a large touring caravan on Plot C. In addition to the mobile homes, each plot has a brick meter box, and each also contains building equipment, building materials, and one or more vehicles. Each plot is provided with hardstanding. Plot D, the last plot on the appeal site provides access. As I understand it, Mr Yates is the freehold owner of the entire site.

[99]Each family went into occupation on the same day (21 December 2001) and three applications were made to the District Planning Authority for planning permission to station mobile homes and touring caravans on the land. This was, therefore, an unlawful development at its inception. The inspector found that the failure to approach the Council or apply for planning permission could not be condoned, but that there were cogent reasons for the Doe and Yates families to leave their previous site. These applications for planning permission were rejected at a meeting of the District Council’s Area Development Control Committee in February 2002. Stop Notices and Enforcement Notices were issued soon after 5 January 2002, specifying compliance periods of one month. Appeals were entered against the enforcement notices on 15 January 2002 under section 174 of the 1990 Act. Further application for permission for a private gypsy site was made on 15 April 2002, and rejected under delegated powers on 21 June 2002. This application is the subject of the appeal under section 78.

[100]The effect of the enforcement notices is to require the use of the site for residential purposes to cease. The notices necessarily require, therefore, that the appellants seek pitches for their mobile homes elsewhere or cease to occupy mobile homes at all, going into ordinary residential accommodation.

[101]By section 70(2) of the 1990 Act, in dealing with an application for planning permission the local planning authority is required to have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations, and by section 54A the inspector’s determination is required to be made in accordance with the plan ‘unless material considerations indicate otherwise’. The statutory development plan in this case comprises the Approved West Sussex Structure Plan 1993 and the adopted Chichester District Local Plan First Review 1999. The 1993 Structure Plan was approved before the change in national policy affecting the provision of gypsy sites took place that is reflected in the policy advice of Circular 1/94. The Local Plan obviously was adopted after that change in national policy.

[102]Policies C1 and H7 of the Structure Plan are as follows: C1. The Planning Authorities will seek to protect the countryside for its own sake from development which does not need a countryside location, and will ensure that the amount of land taken for development is kept to the minimum consistent with the provision of high quality and adequate space within the built environment. Development will not normally be approved outside built up area boundaries unless it is for quiet informal recreation or related to the essential needs of any of: agriculture, forestry, the extraction of minerals, the deposit of waste or the implementation of Policy H6. Permission will not normally be given for the extension of isolated groups of buildings or the consolidation of linear or sporadic development. … H7. While permission may be granted for the establishment by gypsies themselves of caravan sites in suitable locations, further provision by the Local Authorities will be considered only in the light of a demonstrated need.

[103]C1 is the fundamental policy. As the inspector said, its aim is to prevent development in the countryside outside the defined settlement areas and SPAs which does not need to be there. Policy H7 refers expressly to gypsy sites but gives no guidance on location. The note accompanying Policy H7 adds nothing simply referring to West Sussex’s satisfaction of the requirements of the Caravan Sites Act 1968, and adding that future changes in legislation will be monitored.

[104]Circular 1/94: Gypsy Sites and Planning, provides policy guidance in anticipation of the repeal of the Caravan Sites Act 1968. It provides guidance on the content of development plans (paragraph 9). The basic guidance given (paragraph 12) is that local plans and Part II of unitary development plans should wherever possible identify locations suitable for gypsy sites, but where that is not possible development plans should set out clear realistic criteria for suitable locations. Further guidance is given on the provision and location of sites, including, in paragraph 13, the general policy that it will not as a rule be appropriate to make provision for gypsy sites in areas of open land where development is severely restricted, for example, in Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest and other protected areas, nor in Green Belt. In paragraph 14, a suggestion is advanced that rural sites may be appropriate, provided that care is taken to avoid encroachment on the open countryside and to ensure consistency with agricultural and countryside policies, including those set out in PPG7 on the protection of the best and most versatile agricultural land. PPG7 sets out national policy on land use planning in rural areas of England, and is a further thread in the underlying policy fabric.

[105]In compliance with the need for clear criteria for suitable locations identified in Circular 1/94, Policy RE22 of the Local Plan accordingly provides a list of eight criteria for the location of gypsy sites in rural areas, echoing the suggestions of Circular 1/94: RE22: 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;

(2) They are not likely to cause harm to sites designated as sites of special scientific interest, nature reserves or other sites of nature conservation interest;

(3) They are not sited within strategic gaps or on the best and most versatile agricultural land unless there are compelling circumstances;

(4) The siting, layout and design are acceptable to the district planning authority in accordance with policies BE11, BE14 and TR1;

(5) They have convenient and safe access to the road network;

(6) They are convenient for schools and other community facilities;

(7) The uses do not result in development which would be likely to cause a disturbance to neighbours by reason of noise, fumes and dust resulting from vehicular movement and the storage of machinery and materials;

(8) They are sited on reasonably flat land , provided that the proposals do not create visual encroachment into the open countryside.

[106]The inspector recognised that RE22 is the only up do date specific gypsy site development plan policy, which, as he said, accorded with national advice in PPG7 and Circular 1/94.

[107]By virtue of section 54A of the 1990 Act, the inspector was bound to consider the proposed development in the light of Policy C1 of the Structure Plan and Policy RE22, interpreted in the context of a change in national policy occurring between the two. His material conclusions seems to me as follows: i) The aims of development plan policies are clearly towards preventing development or the consolidation of development outside settlement boundaries and SPAs in order to protect and enhance the countryside. The appeal development does not fall within any of the exceptions in Structure Plan Policy C1. (paragraphs 27 and 28 of the decision letter). ii) It is not reasonable or realistic to interpret Policy RE22 as making acceptable only those sites that are close to built up areas or within small groups of buildings in the countryside and not defined as SPAs, as does the Council (paragraph 33); iii) There is a conflict between the Council’s implementation of Policy RE22 and the aims expressed in Circular 1/94 on the one hand and in ‘the policy as adopted’ on the other. I take the last phrase to mean that there is inconsistency with Policy RE22 as properly interpreted in the light of Circular 1/94 (paragraph 35); iv) In the light of that conflict, Policy RE22 should be applied to the appeal site, but without any assumption that this gypsy development is inherently unacceptable in a rural area (paragraph 35); v) The development causes some harm to the character of the countryside at the appeal site in the light of the aims of Policy RE22, and this harm weighs against the grant of permission.

[108]In coming to this conclusion, it seems to me clear that the inspector considered that there was a breach of policy C1; that policy C1 did not stand alone, but had to be considered with policy RE22 in the light of the underlying national policy expressed in Circular 1/94; and that the appropriate assessment of the degree of planning harm would be that which I have set out in paragraph 107.iv) above. In my judgment, in agreement with Auld LJ and Wall LJ, this was a basis for his assessment that was open to him. The principles are set out by Schiemann LJ in R v Leominster DC ex parte Pothecary

(1998) 76 P&CR 346

by reference to the speech of Lord Clyde in Edinburgh City Council v Secretary of State for Scotland

[1997] 1 WLR 1447

: ‘The section [sc. Section 54A of the 1990 Act] has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision maker. It is for him to assess the relative weight to be given to all the material considerations. … [The decision-maker’s] decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in light of the whole Plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regards. He will then have to note which of them support the application and which of them do not and he will have to assess the weight to be given to all these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the Statute has given to it. And having weighed these considerations and determined these matters he will be required to form his opinion on the disposal of the Application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse. Schiemann LJ observes that Lord Clyde rejected the submission that inevitably in the practical application of the section two distinct stages should be identified, with these words: The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in the light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate.

[109]I should refer also the judgment of Robert Walker LJ at 76 P&CR 359: In his speech, Lord Clyde rejected the Secretary of State’s submission that the new section always requires a two-stage approach, the first stage being for the decision-maker to decide whether or not the development plan should be given its statutory priority. This appeal shows that there are cases, of which this is a striking example, when the first stage must be for the decision-maker to decide whether the proposed development is or is not in accordance with the development plan. Sometimes, of course, the answer to that question will be obvious (for instance, the development plan may have a bald and unqualified prohibition on open-cast mining or quarrying in a conservation area). But more often the development plan will (as in the City of Edinburgh Council case, and as in this case) contain exceptions, qualifications, overlapping or even contradictory policies and issues on which value judgments have to be made.

[110]These statements of principle clearly indicate the limits of the court’s jurisdiction to interfere in the inspector’s decision. The court is ill-equipped itself to reach any factual conclusions about a particular application, or itself to make the value judgments called for in the context of a particular application.

[111]The inspector considered three matters under the head ‘Other material considerations’. These were(i) the need for gypsy sites in the Chichester District

(ii) the appellants’ personal circumstances, including the personal circumstances of Mr Eames, which were distinct from those of the Yates and Doe families and

(iii) human rights considerations. He held that the need for sites in the District ‘weighs strongly in favour of permission’. He considered the personal circumstances of the Yates and Doe families, including the reasons they had left their previous site, the strength of the ties between the Yates and Doe (and Golby) families and the effect of separation and educational considerations. He found that ‘the health, education and social welfare arguments in the context of the recognition of the cultural importance of extended gypsy families adds weight to the case for permission for the Yates and Doe families.’ There is no challenge to these findings.

[112]In paragraphs 60 and 61 of the decision letter, the inspector considers the position of Mr Eames. This part of the decision is challenged, but I agree with Auld LJ that the appeal on this ground should be allowed. The basis for finding a factor in favour of Mr Eames case is, I agree, clear.

Human Rights considerations

[113]For ease of reference I set out Articles 8 and 14 of the Convention: Article 8 Right to respect for private and family life 1. Everyone has the 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. Article 14 Prohibition of discrimination The enjoyment of the rights and freedoms set forth 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. Article 8 Right to respect for private and family life Article 14 Prohibition of discrimination

Is Article 8 ‘engaged’?

[114]The inspector dealt with human rights considerations as his third head of ‘other material considerations’. He first considered the proper approach to

Art 8 ECHR

and then considered the ‘micro’ considerations affecting this particular case. He stated the legal approach in terms that in agreement with Wall LJ I consider to be difficult to fault: 63. The Council accepted that, to dismiss these appeals so that the enforcement notices come into effect, would result in the appellants losing their homes on this land and that this would constitute an interference with their right to respect for their home and private and family life under

Article 8(1) of the European Convention on Human Rights

. It is therefore considered that, in all three appeals, Article 8 is engaged. That being so, under paragraph 2 of Article 8, it has to be established whether that interference is, firstly, in accordance with the law, and secondly, necessary in a democratic society in the interests of the economic well-being of the country (which includes the preservation of the environment) or for the protection of the rights and freedoms of others. In the light of the judgments in Cremieux v France (1993) 16 ehrr 357 and Chapman v United Kingdom

(2001) 33 EHRR 399

it is acknowledged that the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them in a given case convincingly established, and that the interference must correspond to a pressing social need and be proportionate to the aims pursued.

[115]I am conscious that I am not familiar with planning law, but with great respect to Auld LJ I believe that this correctly states the content of the Art 8(1) right. ‘Home’ is an autonomous concept in the law under the EHCR. In Chapman v United Kingdom

(2001) 33 EHRR 399

the ECtHR said 73. The Court considers that the applicant’s occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the applicant’s stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition.

[116]This is a clear statement of the Art 8(1) right in the Chapman case, and, it seems to me, in other gypsy planning permission and enforcement cases. The ECtHR in Chapman considered the issue of interference separately. It records an acceptance by the Government that there had been ‘an interference by a public authority’ with the applicant’s right to respect for her home disclosed by the refusal of planning permission and the pursuit of enforcement measures against her, and then makes a determination (paragraph 78) which appears to follow the concession: 78. Having regards to the facts of this case, it finds that the decisions of the planning authorities refusing to allow the applicant to remain on her land in her caravans and the measures of enforcement taken in respect of her continued occupation constituted an interference with her right to respect for her private life, family life and home within the meaning of

Article 8(1) of the Convention

. It therefore examines below whether this interference was justified under paragraph 2 of Article 8 as being ‘in accordance with the law’, pursuing a legitimate aim or aims and as being ‘necessary in a democratic society’ in pursuit of that aim or aims.

[117]It has been repeatedly emphasised that Art 8 does not confer on the citizen a right to a home, but a right to respect for a home, which is different: see Chapman paragraph 99 and (not cited to us, but a parallel case) the decision of the House of Lords in LB Hounslow v Qazi

[2003] UKHL 43

. In the present case the Council says, and the learned Judge agreed, that when the inspector considered the question of justification of the interference under Art 8(2) he made precisely this error.

[118]Of course, it is not possible to assess whether the interference with the protected right is proportionate to the interests to be protected under Art 8(2) if one incorrectly identifies the protected right in the first place. But it is equally important, in my judgment, not to confuse considerations which naturally belong in the realm of justification with the identification of the protected right or with a finding that there is an interference with that right. My reading of paragraphs 65 to 70 of the inspector’s decision letter is that he uses the framework provided by Art 8(2) to identify and balance the planning factors that he has already identified with the other factors he identifies relating to the interference to arrive at a conclusion whether there is a pressing social need for the interference and that it is proportionate to the aims pursued. I summarise the factors as follows: i) If permission were refused, the evidence was that the appellants would have to look elsewhere, and more widely that in West Sussex; ii) There was no evidence that any private pitches were available, and so public pitches would have to be sought, and, although the Doe and Yates families were model tenants, there was no reason to suppose that any Council pitch would be available, and the position for Mr Eames, a single man, would be worse (paragraph 64 of the decision letter); iii) Further movement might well not result in finding a pitch, there being a national shortage of lawful sites, and so they would be without a secure home for an appreciable period (paragraph 65); iv) The interference implicit in the foregoing considerations was said to be necessary to protect the environment, and, while the development would result in some harm to the environment, the site was not subject to any special designation due to its qualities either in a national or local context, had no recognised nature conservation value, or archaeological potential and had no declared historical value—it was ordinary countryside accorded the least degree of protection in the hierarchy of protection conferred by the planning system (paragraph 66); v) Environmental harm could be further reduced by suitable conditions as to planting (paragraph 67); and vi) The appellants are members of a particular and vulnerable minority whose needs for a home are recognised in planning policy and Government advice, which recognise in Circular 1/94 and RE22 that private gypsy sites may be appropriate in rural locations where a need for such homes can be established. Given that only about 23% of the rural area of the district is not subject to special designation, the amount of land where only limited harm would be caused by the establishment of any gypsy site is strictly limited.

[119]Having set out these factors, the inspector concludes his analysis of the human rights issues in paragraphs 69 and 70 of the decision letter. For ease of reference, I set them out again:69. Account has been taken of the Council’s argument that the judgment in Chapman found that the United Kingdom government was not under an obligation to provide an adequate number of gypsy sites. But paragraph 9 of Circular 1/94 says that repeal of the statutory duty of local authorities under the 1968 Act to provide gypsy sites makes it all the more important that local planning authorities make adequate gypsy site provision in their development plans. In this case the Council has not demonstrated that it has a sound statistical basis for its conclusion that there is no need for any new gypsy site, despite saying that it accepts there is a small unmet need. Furthermore the Council has not granted a single planning permission for a private gypsy site since their Local Plan was adopted in 1999, and the only private gypsy sites in the District all appear to have been granted on appeal, that is following refusal of permission in the first instance by the Council. That situation, coupled with the Council’s interpretation of the Local Plan gypsy policy, RE22, appears to have ensured that in practice there is little credible prospect of any private gypsy site being permitted by the Council. This conclusion has to be seen in the context of the need for sites in the District, Policy RE22 and paragraph 249 of the Local Plan, and the Government policy in Circular 1/94 which makes it clear that the needs of gypsies must be met.

70. Against this background the limited harm caused to the environment, and hence to the public interest, by the appeal development has to be weighed against the serious harm to the appellants arising from the failure to recognise and provide for the needs of gypsies in the District by granting permission for sites. It is concluded that in this case that limited harm does not constitute a pressing social need for the interference with the Article 8(1) rights of all the appellants which would result from the upholding of these notices. Moreover, by leading to a situation where there is a high probability that at least one of the appellants would lose their present home for a significant period, such interference would be disproportionate. For these reasons, and because the Council has not convincingly established why the interference is necessary, it is concluded that it is unacceptable. Thus the human rights arguments weigh heavily in favour of the appellants.”

[120]Before the Judge, it was common ground that Art 8 was engaged, in the sense that the respondent Council accepted that ‘to uphold the enforcement notices would involve an interference with the appellants’ article 8(1) rights’ (judgment paragraph 32). Having considered the decision letter and the judgment of the ECtHR in Chapman, the judge held 36. It seems to me that…although in paragraph 69 the inspector noted that the United Kingdom Government was not under any obligation (by virtue of article 8) to provide an adequate number of gypsy sites, he, in effect, held that article 8 carries with it a duty on the Council, as the relevant local planning authority, to exercise its planning powers to help achieve that end in its area. In my judgment the article imposes no such an obligation. The inspector was wrong to think that it did.

[121]With great respect to the learned Judge, I am unable to find that the inspector did by implication suggest that there was such a duty on the council. If numbers of available sites are a factor to take into account in deciding whether to grant permission in a particular case, it may be difficult to indicate as a matter of language that a shortage (or as the inspector seems to have thought, a deliberate shortage) of sites is being taken into account without also suggesting that there is duty to provide more sites having regard to the paucity of existing provision. In my judgment it is clear that the nature of existing provision is highly material: this is made clear by Chapman: 103. A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation. …111. The Court observes that during the planning procedures it was acknowledged that there were no vacant sites immediately available for the applicant to go to…

112. Moreover, given that there are many caravan sites with planning permission, whether suitable sites were available to the applicant during the long period of grace given to her was dependent upon what was required of a site to make it suitable. In this context, the cost of a site compared with the applicant’s assets, and its location compared with the applicant’s desires are clearly relevant…

113. The Court is therefore not persuaded that there were no alternatives available to the applicant besides remaining in occupation on land without planning permission in a green belt area…

[122]For my part I would not accept that in saying (at the end of paragraph 69 of the decision letter) that Circular 1/94 makes it clear that the needs of gypsies must be met the inspector prepared the ground for the error that he is said to have made. It is, after all, paragraph 6 of the Circular that says that the land use requirements of gypsies ‘need to be met’, and paragraph 9 of the same document points out that repeal of the statutory duty to provide sites ‘will make it all the more important that local planning authorities make adequate gypsy site provision in their development plans’. In my judgment, paragraph 70 of the decision letter sets out with sufficient clarity the balancing operation that the inspector carried out to satisfy me that he did not permit the shortage of sites to trump the planning harm that he identified. It was one of many factors which he identified in deciding that enforcement was disproportionate to the planning harm he identified.

[123]For the foregoing reasons, as well as those set out by Wall LJ, I respectfully consider that the learned Judge’s criticisms of the inspector’s approach to the

Art 8 ECHR

considerations in this case are unjustified and I would allow the appeal accordingly. __________________

First Secretary of State & Ors v Chichester District Council [2004] EWCA Civ 1248

Conclusion

Issue 2 – Personal circumstances - Mr Eames

Submissions

Conclusion

Issue 3 – Article 8 ECHR –Chapman v UK

Conclusion

The inspector’s approach to the Article 8 issue

The position of the individual appellants

Human Rights considerations

Is Article 8 ‘engaged’?

Cited in 9 later judgments