Hilda Rafferty & Bessie Jones v Secretary of State for Communities and Local Government & Ors [2009] EWCA Civ 809

[2009] EWCA Civ 809Case No C1/2008/3071/QBACF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Pitchford
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/07/2009
Before
MASTER OF THE ROLLSLORD JUSTICE SCOTT BAKERLADY JUSTICE SMITH
Between
HILDA RAFFERTY & BESSIE JONESAppellantsTHE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT1st RespondentNORTH SOMERSET COUNCIL2 nd Respondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
David Watkinson (instructed by Messrs South West Law Ltd) for AppellantMr Gordon Nardell and Colin Thomann (instructed by The Treasury Solicitor) for 1 st RespondentHearing Hearing date: 23 June 2009Judgment
[1]This is an appeal from Pitchford J who on 5 November 2008 dismissed the appellants’ application under Section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) against a decision by a planning inspector given in a letter of 12 July 2007 which dismissed the appellants’ appeals against refusal of their applications for planning permission for a change of use of land at Banwell, North Somerset.[2]The site in question is known as Reeves Ground, off Banwell Road, Banwell BS29 6NR. The appeals to the inspector had been under Section 78 of the 1990 Act and the permission sought was for a change of use to a residential gypsy caravan site for two Romany gypsies.[3]The grounds of appeal relate to Article 8 of the European Convention on Human Rights (“the ECHR”) and are in the following terms. i) “(The judge) failed to find that the Planning Inspector had adopted too narrow an approach to the application of Article 8, by appearing to hold that Article 8(1) did not apply as the appellants did not live on the land, the subject of the appeal, without considering that Article 8(1) applied as the appellants, being gypsies, lived in caravans, which, being sited off the land at the time of the inquiry before the Inspector, at a location which was not stable or lawful, were liable to summary eviction as a result of the dismissal of their appeal. ii) He wrongly took into account that it was “a material and conclusive factual distinction” that the appellants were enjoying their private and family lives at a location off the appeal land when the evidence before him as before the Inspector was that the appellants (including their infant children) were encamped on a lay-by, which was necessarily unlawful and unstable. iii) He failed to find that a dismissal of the appellants’ appeal by the Inspector, having the effect that they were unable to move their caravans onto the appeal land, was as capable of being a breach of Article 8 as a decision which had the effect of requiring them to move off. iv) He failed to find that a decision which had the effect that the appellants were unable to establish lawful occupation of their caravans on the appeal land and to establish a stable base which would enable them to exercise their private and family lives, including their traditional lives as gypsies, and which would facilitate their access to educational and health facilities was or was capable of being a breach of Article 8(1). v) He wrongly determined that the Inspector had considered the Convention aspect as if there had been interference with Article 8(1), when the Inspector had plainly found that there was no interference and, in any event, such a finding would have wrongly influenced his approach to the issue of proportionality.” The first four grounds relate to whether Article 8(1) was in issue, or as it is sometimes described engaged, on the facts of this case. The fifth ground concerns Article 8(2) on the basis that the judge was wrong on Article 8(1).[4]The appellants bought the site, which comprises two separate plots of land at Reeves Ground, in 2002 but they did not move onto it. At the time of the inquiry hearing they were living in a caravan on a lay-by at Pershore. The second appellant has two children aged 10 and 8. The application for planning permission was made on 16 February 2006 and refused by a notice dated 21 July 2006. The inquiry hearing took place on 15 May 2007.[5]Planning permission for change of use of the land to the siting of two mobile homes and two touring caravans had been refused in June 2005 with no resultant appeal, and an enforcement notice was upheld on appeal in December 2006 requiring cessation of the use of the land for storage purposes and removal of all caravans brought onto the land in connection with the unauthorised use.[6]The section 288 application against which the present appeal from Pitchford J. lies was made on 4 November 2008.[7]I turn next to the decision letter of the inspector. He defined the four main issues in the appeal as: i) “The effect of the proposed development on the character and appearance of the surrounding area – part of the Mendip Hills and an area of outstanding natural beauty (“AONB”). ii) The effect on patterns of travel, particularly car use. iii) The effect on highway safety. iv) Whether any conflict with the policy or other harm would be outweighed by other material considerations, including the need for gypsy sites and the appellants’ personal and family circumstances.”[8]The inspector identified the relevant provisions in the Joint Replacement Structure Plan, the North Somerset Replacement Local Plan and the Regional Planning Guidance for the South West. He dealt first with the effect of the proposed development on the character and appearance of the neighbourhood. He said at para 13:
“I consider the introduction of such development in the countryside would undoubtedly have an urbanising effect which would detract from the area’s rural character.”
And a little later:
“….the development would harm the area’s attractive appearance and the natural beauty of the AONB.”
And at para 14:
“While generally accepting, in principle, rural settings for gypsy and traveller sites, ODPM circular 01/2006: Planning for Gypsy and Traveller Caravan Sites states that in areas such as AONBs with nationally recognised designations, planning permission for such sites should only be granted where it can be demonstrated that the objectives of the designation will not be compromised by the development. The primary objective of designation is conservation of the natural beauty of the landscape, and the proposed development would conflict with this.”
And at para 16:
“Nevertheless, it remains my conclusion on this issue that the proposed development would cause unacceptable harm to the character and appearance of the surrounding area, part of the Mendip Hills AONB. It would conflict with the aims of Circular 01/2006, Structure Plan Policy 17 and Local Plan policies ECH/7, ECH/8 and H/12 (criterion (iii)).”
[9]He thought the proposed development would cause little harm to patterns of travel, particularly car use, and that the conflict with the Guidance and Plan Policies would be minimal. He thought the proposed development would cause some harm to highway safety but that this would be minimised by the low number of vehicles generated. The proposal would accord with the aims of Circular 01/2006 and not greatly conflict with Local Plan Policies.[10]The real issue was with regard to Article 8 of the ECHR which provides:
“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 freedom of others.”
[11]It was common ground that the appellants are gypsies and that the site would be occupied by the appellants and the two appellants’ children Montana aged ten and Sean aged eight. The inspector said (para 31) that there was a continuing modest need for additional gypsy sites in North Somerset but that the need was much higher in other local authority areas in the former County of Avon.[12]No assessment of the need for sites had been undertaken by the council although it was participating with other authorities in a Gypsy and Traveller Accommodation Assessment (GTAA). A final report was expected any minute and there might be agreement in October 2007 but progress thereafter was uncertain. The GTAA would inform development of a site specific policy to go into a future Development Plan document.[13]The appellants had sought land elsewhere (although there was little evidence to establish this). They had never lived in a house or had a long term site on which to live. When picking crops, they parked their caravans at the roadside or on relatives’ sites.[14]At the time of the hearing they were on a lay-by at Pershore but their agricultural work took them to the Somerset area. The inspector found there was a need for a site to accommodate the appellants and the children. The children have never been to school and have little or no reading/writing ability. Their mother wants them to be properly educated so that when they grow up they can obtain driving licences and jobs. There are schools in Winscombe and Banwell where they could go. They are not registered with any GP and in both education and health they face the sort of difficulties often faced by gypsies.[15]That said, however, the inspector found no compelling health or education reasons for occupation of only the appeal site in its sensitive location rather than a settled base somewhere, although no alternative option had been found nor was one suggested by the council.[16]He concluded that from both the education and health point of view – especially the latter – the need for stability was an important consideration. In the absence of the appeal site there was no evidence that there was a realistic prospect of finding anywhere in the foreseeable future. However, the harm that would arise from the development was sufficiently serious not to be outweighed by the need of these appellants for this particular site.[17]He considered, but rejected, a temporary permission on the basis that there was no reasonable expectation of new gypsy sites becoming available in the foreseeable future.[18]There is this critical finding at paragraphs 40 and 41:
“40. The appellants contend that dismissal of the appeal would result in the violation of their rights under Article 8 (respect for private and family life and the home), Article 2 of the First Protocol (right to education) and Article 14 (freedom from discrimination) of the European Convention on Human Rights which are incorporated into the Human Rights Act 1998. However, the appellants do not live on the land, so dismissal of the appeal would not cause the loss of their home. Dismissal would make it difficult to access education services, but would not deny the children access to education, and there would be no discrimination because planning policies such as those which control the development in the countryside apply with equal force to the whole population. 41. The effects on the appellants must be weighed against the wider public interest and, for the reasons given above, I have found that the proposal would be harmful to the area’s character and appearance (compromising the objectives of AONB designation) as well as (albeit to a lesser extent) patterns of travel and highway safety. I am satisfied that these legitimate aims can be adequately safeguarded only by the refusal of planning permission. On balance, I consider that dismissal of the appeal would not have a disproportionate effect on the appellants.”
[19]When the matter came before Pitchford J he posed the question whether, if family and private life was being enjoyed elsewhere, the refusal to change the planning use of the appeal site would imply interference either with life as a family or with the gypsy’s entitlement to respect as a member of the travelling family group. He concluded that it would not. He went on to say that if, contrary to the inspector’s views and his judgment, there was a wider interference with private and family life then it would have made no difference to the Article 8(2) assessment. He went on:
“50……In reaching the decision upon the proportionality of the interference, the inspector would be required to make an assessment of the quality and degree of that interference. There is, it seems to me, a difference in substance between an interference which constricts the family’s choice of a future home and an interference which deprives the family of a home already established. The impact of the former in the assessment of proportionality is marginal by comparison with the latter. My conclusion is that the inspector would have brought his focus to bear upon that feature of his decision which would most impact upon this family’s needs, and thus inevitably would have reached the same conclusion.”
[20]For my part I have some difficulty with this passage in the judgment. It does not follow that where Article 8(1) is in issue in a gypsy case of the present kind the Article 8(2) balancing exercise will inevitably be resolved against the gypsy. On the other hand, if what the judge was saying was that if the inspector was wrong about the applicability of Article 8 the result would inevitably have been the same because the inspector had carefully weighed all the material facts anyway, then that in my view was a correct statement of the law: see Simplex GE Holdings Limited v The Secretary of State for the Environment (1988) 57 P and CR 306, and a correct basis for upholding the inspector’s decision.[21]The main argument on the appeal before us focused on the applicability of Article 8(1) to the facts of the case. The Secretary of State’s argument runs along the following lines. A person’s home is the place that he occupies as his home, whether lawfully established or not; Article 8 does not protect a mere intended home. The principle of respect for home does not imply a positive obligation on the state to facilitate the provision of a home and this is so even where the absence of a stable home may have detrimental effects for example on health or education. Accordingly, refusal of planning permission to allow one’s intended home to become established cannot result in the loss of a home or otherwise amount to an interference with the right to respect for a home. Respect for private and family life takes the matter no further. The state is not positively obliged to enable a person to carry on private or family life in a place that is not his home. Refusal of planning permission to enable a person to move to such a place to carry on private or family life cannot amount to an interference with any Article 8 right.[22]Where, the argument continues, a decision does engage a right under Article 8(1), status as a gypsy becomes relevant in the balancing exercise under Article 8(2). Thus the case law rightly recognises gypsy status as a special aspect of private life when there is an interference with an existing home such as occupation of a caravan, but it does not support the extension of Article 8(1) to an intended home. Gypsy status cannot make Article 8(1) applicable to a situation that is simply beyond its scope. Circular 01/06 addresses the problems of providing accommodation for gypsies and the need to provide sites, but the inspector was well aware of this referring to it on more than one occasion and he dealt sympathetically with the appellants’ needs against the background of the circular.[23]The main thrust of the appellants’ argument is that it makes no difference in the present case that they are not already living in a caravan on the site. The inspector’s approach was too narrow. The stable base for the appellants and their caravan is an important, if not an essential, requirement to enable them to pursue their traditional way of life as well as access to educational and health facilities. The narrow approach of the inspector did not take into account respect for their private and family life. The fact that they were living in Pershore was not a “material and conclusive factual distinction”. Their occupation of that site was precarious and liable to be determined at any moment. In short, the judge was wrong in concluding that Article 8 was not in issue and wrong to conclude that even if Article 8(1) was in issue the inspector would inevitably have reached the same conclusion.[24]It seems to me that the most formidable point in favour of the argument of Mr Watkinson, for the appellants, is the inevitable consequence, if the judge was correct, that a person who unlawfully occupies a site by putting a caravan on it without first obtaining planning permission is in a better position than someone, like the appellants, who makes his application for permission without first going on to the site with his caravan and occupying it unlawfully. Had the appellants occupied the site unlawfully Article 8(1) would have been in issue but because they did not, it was not. This seems to me to be a highly unsatisfactory state of affairs and one which should not be reached unless authority compels it.[25]Pitchford J had the point in mind because he said at para 48 he was aware of the perverse incentive his decision was capable of creating adding that, as Mr Watkinson had correctly observed, the appellants had not taken advantage of their ownership and occupation of the site in order to establish even a temporary home life before making their application for planning permission and appealing to the inspector. However, he thought the observations of the European Court of Human Rights (“ECt.HR”) in Chapman v United Kingdom (2001) 10 BHRC 48, 72 para 102 would be a corrective. What the court had said at para 102 was:
“Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under art 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection (see para 81, above). When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the court to do otherwise would be to encourage illegal action to the detriment of protection of the environmental rights of other people in the community.”
[26]That, however, does not alter the fact that it would be not only odd but also unsatisfactory if the unlawful occupant could engage Article 8(1) whereas an owner of the land who acts lawfully does not. One cannot predict with any certainty the outcome of the Article 8(2) balancing exercise until one knows the facts of the case; so it may or may not, as Pitchford J suggested provide a corrective.[27]There is no doubt that if the appellants had occupied their caravans on the site and occupied them without planning permission they would have engaged Article 8(1) see e.g. Chapman, and also Chichester District Council v The First Secretary of State and Others [2005] 1 WLR 279, Wall LJ at 297C.[28]In my judgment it is important to start with the relevant words in Article 8(1) “respect for his private and family life, his home and his correspondence.” There seems to me be an element of artificiality in the present case in dissociating the physical home, namely the caravans, from private and family life, all of which require respect and are to a large extent inseparable. “Home” includes not only the bricks and mortar of a fixed property but also a mobile home. What is being disrespected is the appellants’ right to live in a home (in this case a mobile home) on land which they own. It is, as Mr Watkinson put it in argument, as much a lack of respect not to allow them to move onto the site that they own as to make them move off it. The effect in either instance is to deny them a stable base. Their home is their caravan and that is where they carry on their private life. That is the right that is being infringed by not allowing them to put it on their land.[29]I do not accept the submission of Mr Nardell for the Secretary of State that the appellants have got to frame their Article 8(1) right in the present case as a positive rather than a negative obligation to them because they have no home or private life to be interfered with. It seems to me that they have. Home and private life are conceptually linked.[30]I turn next to the authorities. In Chapman the applicant was a gypsy. She bought a piece of land with the intention of living on it in a mobile home. She moved onto the land with her family and applied for planning permission which was refused by the council who served enforcement notices. She appealed and an inspector held a public inquiry and dismissed her appeal as the land was green belt. Various enforcement measures followed. The court held that there was an interference with her right to respect for private life, family life and home within the meaning of Article 8(1) but that it was justified under Article 8(2). The court said at paras 73 and 74:
“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. “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.”
It added at para 78:
“78. Having regard 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 art 8(1) of the Convention.”
[31]I can find nothing in Chapman against the interpretation of Article 8(1) that I favour; if any thing the reverse.[32]Connors v United Kingdom (2005) 40 EHRR 9 was another gypsy case in which the applicant complained he was not given the opportunity to challenge in court allegations that were the basis of his family’s eviction. It was held that there had been a violation of Article 8. It was not disputed that Article 8 was applicable and the question under Article 8(2) was whether the interference was “necessary in a democratic society”. In that case the applicant and his family were gypsies and were served by the council with eviction notices from the gypsy site that they occupied. His complaint was that he was not given the opportunity to challenge in court the allegations that were the basis for the family’s eviction. The court referred at page 216, para 82 to Article 8 concerning rights of central importance to an individual’s identity, self determination, physical and moral integrity, maintenance of relationships with others and a settled and secured place in the community, adding at para 84:
“The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of art.8 to facilitate the gypsy way of life.”
It should, however, be noted that the issue in that case was under Article 8(2) and the reference to a positive obligation should be seen in that context. I fully accept the respondent’s proposition that respect for home implies no positive obligation to provide a home either generally or to those who follow a nomadic lifestyle. The present case is not concerned with any positive obligation under Article 8(1).[33]An important case in the domestic field is the Chichester case. A gypsy established a residential site on his own agricultural land without planning permission. He was joined there by others and their families. It was held that although Article 8 imposed no duty on the local planning authority to exercise its planning powers so as to ensure an adequate provision of private gypsy sites, the inspector in considering whether the infringement of the rights under Article 8(1) of those who joined him was justified under Article 8(2) was entitled to take into account as a balancing factor in their favour the fact that the planning authority had not made adequate provision for gypsies in accordance with national policy. Accordingly there had been no error of law and his decision and the grant of planning permission would be reinstated. Wall L.J said at 297C, para 67: that at the risk of appearing simplistic the correct Article 8 analysis seemed to him to run 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.”
[34]He said that his analysis was consistent with that of the ECtHR in Chapman, referring in particular to the statement at para 73 that measures affecting Mrs Chapman’s stationing of her caravans had a wider impact than on the right to respect for a home.[35]Pumfrey J, in a concurring judgment, said at para 115, again citing para 73 in Chapman, that:
“home” is an autonomous concept in the law under the Convention. He also said, in a passage relied on by Mr Watkinson at para 118: “Of course, it is not possible to assess whether the interference with the protected right is proportionate to the interest to be protected under article 8(2) if one incorrectly identifies the protected right in the first place.”
[36]We were referred to a number of other authorities including Harrow London Borough Council v Qazi [2004] 1 AC 983 where Lord Bingham of Cornhill said at 990E, para 8:
“On a straightforward reading of the Convention, its use of the expression “home” appears to invite a down-to-earth and pragmatic consideration whether (as Lord Millett put it in Uratemp Ventures Ltd v Collins [2002] 1 AC 301, para 31) the place in question is that where a person “lives and to which he returns and which forms the centre of his existence”, since “home” is not a legal term of art and article 8 is not directed to the protection of property interests or contractual rights.”
[37]None of the authorities in my view prevent the court from taking a rather wider view of the ambit of Article 8(1) than did the judge and the inspector. Indeed the tenor of the authorities seems to me to be towards the special considerations with regard to the gypsy way of life engaging Article 8(1), but falling for careful consideration in the balancing exercise under Article 8(2). The central point seems to me to be that the appellants’ home is their caravans and it is from there that they carry on their private lives. That is the right that is being infringed in this case and it seems to me it is being infringed whether or not their caravans are already on the land in respect of which they seek a change of planning use.[38]I turn therefore to the fifth ground of appeal and in doing so I bear in mind Mr Watkinson’s reliance on the observations of Pumfrey J in the Chichester case at para 118. There is no doubt that the inspector had in mind and took into account the particular needs of the appellants, albeit he did not do so under the Article 8 label. He referred at paras 38 et seq to their nomadic lifestyle and agricultural work, the needs of the children and the fact that they could not read or write, readily access medical services and so forth. He noted that Mrs Jones has asthma problems and that the family’s problems exemplified the sort of difficulties often faced by gypsies. However, he concluded that there were no compelling health or education reasons for the occupation of the site in question in its sensitive location. His conclusion at para 38 was that the harm from the proposed development was sufficiently serious not to be outweighed by the need for this gypsy site for the applicants.[39]It seems to me therefore that even if the inspector had concluded Article 8(1) was applicable he would inevitably have reached the same conclusion on the appeal. In this case he weighed all the factors as planning considerations that would have been weighed under Article 8(2). As Pill L.J pointed out in Lough v First Secretary of State [2004] 1 WLR 2557, 2575, para 49, the concept of proportionality is inherent in the approach to decision making in planning law. He added:
“The effect of the proposal on adjoining owners and occupants must, however, be considered in the context of article 8, and a balancing of interests is necessary.”
All the relevant gypsy ingredients were in the mix in the balancing exercise in the planning decision in this case and the fact that it was not appreciated by the inspector that Article 8(1) was applicable in my view made no difference to the result.[40]I would accordingly dismiss the appeal.[41]Smith L.J: I agree.[42]Master of the Rolls: I also agree.

Cited in 1 later judgment