Thompson & Ors v First Secretary of State & Ors [2007] EWHC 891 (Admin)

C0/8865/2005; CO/1008/2005

[2007] EWHC 891 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 26 March 2007

Strand

London WC2

B E F O R E:

MR JUSTICE SULLIVAN

Between

TERRENCE THOMPSONClaimant

MICHAEL DORANClaimant

ALAN DORANClaimant

ALAN CASHClaimant

-v-

Between

FIRST SECRETARY OF STATEDefendant

LONDON BOROUGH OF BROMLEYDefendant

LEONARD POWELLClaimant

-v-

FIRST SECRETARY OF STATE

SEVENOAKS DISTRICT COUNCIL

(DEFENDANTS)

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR ALAN MASTERS (instructed by Bramwell Brown Odedra) appeared for Thompson & Others

MR MICHAEL RUDD (instructed by Bramwell Brown Odedra) appeared for Powell

MR TIM MOULD QC (instructed by the Treasury Solicitor) appeared for FIRST DEFENDANT

J U D G M E N T

MR JUSTICE SULLIVAN:

[2]Introduction In these two applications under section 288 of the Town and Country Planning Act 1990 ("the Act"), the claimantS seek the quashing of two decisions by the first defendant dismissing their appeals under section 78 of the Act and refusing to grant permanent or temporary planning permission for the use of land for the stationing of gypsy caravans.

[3]The two sites are different: one is in the London Borough of Bromley and the other is Sevenoaks District Council, but there are similarities between the two decision letters. In each case, while the Inspector recommended that permanent planning permission should be refused, he recommended that a temporary planning permission for three years should be granted. In each case the first defendant agreed with the first recommendation and disagreed with the second. There are also similarities in the submissions advanced on behalf of both applicants. In each case the two principal arguments are, first, that the court should quash the decision so that the first defendant can reconsider the merits of granting temporary planning permission in the light of Circular 1/2006 Planning for Gypsy and Traveller Caravan Sites published on 2nd February 2006; and secondly, that the first defendant gave inadequate reasons for deciding that it would not be appropriate to grant temporary planning permission in disagreement with the Inspector's recommendation to that effect.

[4]In the Thompson case the Inspector's report is dated 12th July 2005 and the decision letter is dated 21st September 2005. In the Powell case the Inspector's report is dated 4th August 2005 and the decision letter is dated 26th October 2005. Circular 1/2006

[5]Circular 1/2006 was issued on 2nd February 2006, some months after the two decision letters. It undoubtedly represents a significant shift in policy in relation to the provision of gypsy caravan sites. Paragraph 3 of the Circular explains:

"A new Circular is necessary because evidence shows that the advice set out in Circular 1/94 has failed to deliver adequate sites for gypsies and travellers in many areas of England over the last 10 years. Since the issue of Circular 1/94, and the repeal of local authorities' duty to provide gypsy and traveller sites there have been more applications for private gypsy and traveller sites, but this has not resulted in the necessary increase in provision."

Paragraph 12 explains the intentions of the Circular, which include the following:

"b) to reduce the number of unauthorised encampments and developments in the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular; c) To increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission in order to address under-provision over the next 3 - 5 years; d) to recognise, protect and facilitate the traditional travelling way of life of gypsies and travellers, whilst respecting the interests of the settled community; e) To underline the importance of assessing needs at regional and sub-regional level and for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively; f) to identify and make provision for the resultant land and accommodation requirements; ..."

Paragraph 33 of the Circular says:

"Local authorities must allocate sufficient sites for gypsies and travellers, in terms of the number of pitches required by the [Regional Spatial Strategy], in site allocations [Development Plan Documents]. A requirement of the Planning Act (2004) is that DPDs must be in general conformity with the RSS. Criteria must not be used as an alternative to site allocations in DPDs where there is an identified need for pitches. Local planning authorities will need to demonstrate that sites are suitable, and that there is a realistic likelihood that specific sites allocated in DPDs will be made available for that purpose. DPDs will need to explain how the land required will be made available for a gypsy and traveller site, and timescales for provision."

Under the heading "Transitional Arrangements" advice is given in paragraphs 45 and 46 about the use of temporary planning permissions:

"45. Advice on the use of temporary permissions is contained in paragraphs 108 - 133 of Circular 11/95, The use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission. 46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay."

[6]On the face of it that policy advice would appear to be highly relevant in the particular circumstances of these two cases where the Inspectors' recommendations that temporary planning permission should be granted had been based, at least in part, on the failure of the respective local planning authorities to make adequate provision for sites in their areas and the fact that both local planning authorities had commissioned studies into the need for/availability of sites for gypsies and the results of those studies were still awaited. Both Mr Masters on behalf of the claimants in the Thompson case and Mr Rudd on behalf of Mr Powell submitted that the court had an "inherent jurisdiction" to look afresh at the question whether the human rights of the claimants would be interfered with and whether that interference would be proportionate at the time of review.

[7]It was submitted that if the balance was being struck now, then the policy advice in respect of temporary planning permissions in Circular 1/2006 would clearly be relevant and would weigh in the balance in favour of granting temporary planning permission, so that it would, as of today's date, be disproportionate for the court not to quash the decisions and to remit the matters back to the Secretary of State to enable him to look afresh at the merits of granting temporary planning permission in both cases.

[8]It was acknowledged that the proposition that the court had jurisdiction to form its own view as to the proportionality of refusing temporary planning permission was contrary to decision of this court in Buckland and Othersv Secretary of State for Transport and the Regions [2002] GPL 570 (see paragraphs 46 to 59). As I understood their submissions, neither Mr Masters nor Mr Rudd submitted that Buckland was wrongly decided. Rather, they submitted that, on the particular facts of these two cases, there was no need for the court to reach its own conclusion as to the proportionality of refusing to grant temporary planning permission, all the court needed to do was to recognise that there had been a material change of circumstances as a result of the publication of Circular 1/2006 since the two decision letters, and then to adopt a procedure which would enable that change of circumstances to be taken into consideration by the first defendant.

[9]I accept the submission of Mr Mould QC on behalf of the first defendant that those submissions are misconceived. This court has no "inherent jurisdiction" when considering whether or not to quash a decision made by the first defendant and/or an inspector on behalf of the first defendant. The Act (and related planning Acts) comprise a self-contained statutory code.

(b) :

"if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it ..."

[10]This limited role for the court in the context of planning cases has been found to be Article 6 compliant: see R (Alconbury Developments Ltd and Others) v Secretary ofState for Environment Transport and the Regions [2003] 2 App C 295;

[2001] UKHL 23

[11]The short answer to the claimants' submission in respect of Circular 1/2006 is that the first defendant was required to have regard to all material considerations as they existed at the time of the two decision letters. Since at that time Circular 1/2006 did not exist, it could not possibly have been an error of law for the first defendant not to have had regard to it.

[12]In both decision letters the first defendant did have regard to the consultation draft of the revised Circular 1/94, but accorded it little weight because at that stage it was in draft form and thus liable to change. That approach was plainly correct, not least because there were significant changes between the consultation draft and the final version of the Circular, for example paragraphs 45 and 46 in the final version of the Circular were not included in the consultation draft.

[13]That disposes of a subsidiary submission made on behalf of the claimants that in September/October 2005 the first defendant must have known what was likely to be included in the final version of the Circular and should therefore have given it greater weight. Even if such an approach to the weight to be attributed to unpublished changes in Government policy was acceptable (which in my view it is not), on the facts of this case there is no indication as to when the change in policy from the draft to the final version of the Circular incorporating paragraphs 45 and 46 took place. There is simply no reason to suppose that views had crystallised within the Department by September/October 2005.

[14]The fact that the first defendant could not have erred in law by failing to take into consideration policy advice that was not in existence at the time of the decision letters does not mean that there is a lacuna in the system which might result in the claimant's convention rights being infringed. In both cases the respective local planning authorities had made it clear to the Inspectors that if planning permission was refused by the Secretary of State enforcement proceedings would follow. If the decision letters are not quashed by the court, then in deciding whether or not enforcement action would be expedient the respective local planning authorities will have to consider all material factors as they now exist, including the policy guidance published in Circular 1/2006. If an enforcement notice is issued in either case, then the claimants will be able to appeal against that notice on, inter alia, the ground in section 174(2)(a) that planning permission, permanent or temporary, should be granted. On such an appeal Circular 1/2006 would be a most material consideration, as it would be if a fresh application for temporary planning permission was made to either of the local planning authorities. If either local planning authority sought injunctive relief the apparent prospects of such an application for planning permission in the light of Circular 1/2006 (if an application had been made or was about to be made) would be a relevant factor for the court to take into consideration in deciding whether or not to grant discretionary injunctive relief and/or whether such relief should or should not be suspended (see for example the judgment of David Clarke J in South Bucks District Council vSmith

[2006] EWHC 281 (QB)

. There is, therefore, no need in any event for the court to be able to quash the two decision letters in order to ensure that the merits of granting temporary planning permissions for the use of either of these two sites as gypsy caravan sites are reconsidered in the light of Circular 1/2006.

[15]Mr Masters and Mr Rudd submitted that there would be additional expense and inconvenience, but in reality any reconsideration by the first defendant of the merits of granting temporary planning permission would have to be carried out on the basis of all the relevant information that was available at the time the fresh decision was made. This would include not merely Circular 1/2006, but also the outcome, if any, of the studies that had been commissioned by the local planning authorities, any changes in the personal circumstances of the claimants and their families, et cetera.

[16]Before turning to the second main challenge made in both cases -- the alleged inadequacy of the first defendant's reasons for disagreeing with the Inspectors in relation to the issue of temporary planning permission -- it is convenient to deal with a subsidiary argument advanced by Mr Masters in respect of the decision letter in the Thompson case. One of the issues raised was the sustainability of that appeal site. The Inspector concluded in this respect:

"87. The site occupies a countryside location; it is not within easy walking distance of shops, businesses, schools and other facilities. The nearest facilities are in New Addington. Although the entrance to the site is only about 300m from the eastern edge of the built up part of New Addington, it is rather further by road. By road, the edge of the settlement is about 1km away, with the town centre about 1km further away. There is, however, a bus service (No 464) that runs past the junction of Layhams Road with Sheepbarn Lane/King Henrys Drive. Based upon observations at the site visit, this is a hail and ride bus at this point. It runs every half hour throughout the day until after midnight. In New Addington there are connections to the Tramlink service to Croydon. 88. I consider that this bus service is both sufficiently close to the site (about 0.5km) and has a sufficiently frequent service to enable it to provide the option of a real alternative to the use of the car. I have taken into account the fact that the road between the appeal site and the bus service is not especially conducive to walking as there are no footways, cars travel fairly fast and forward visibility is, in places, restricted. Evidence at the Inquiry indicated that the car is the usual means of transport. I have noted that the issues identified by the Inspector in the Layhams Road/Sheepbarn Lane appeal did not include considerations of sustainability, although that site is closer to the bus route. In this case I do not consider that the appeal site is unacceptably poorly located for access to facilities. I consider that it accords with the provisions of policy H5(iii) of the emerging UDP and advice in paragraph 14 of Circular 1/94."

[17]In response, the Secretary of State said in paragraph 19 of the decision letter:

"For the reasons given in [paras 87 and 88 of the Inspector's report] the Secretary of State agrees with the Inspector that the sites are in the countryside and are not within an easy walking distance of shops, businesses, schools and other facilities. The Secretary of State attaches significant weight to the fact that in practice there is no easy alternative to the use of the private car to access services from this site, given the distance to the bus stop and the lack of safe footways. The evidence indicates that the car is the usual form of transport to and from the appeal sites, and in the light of this, the Secretary of State concludes, contrary to the Inspector [Inspector's report paragraph 88] that the sites are relatively unsustainable, and that this adds to the harm caused by the developments."

[18]Mr Masters submitted that the first defendant here disagreed with his Inspector on a matter of fact and that the failure to refer the issue back to the parties for further submissions to be made breached the Inquiries Procedure Rules and/or the rules of natural justice.

[19]I do not accept that submission. There was no disagreement between the first defendant and the Inspector on any issue of fact. On the facts as set out by the Inspector in paragraphs 87 and 88 of his report, there was clearly room for two views: was the bus service described by the Inspector sufficiently frequent and the access to it sufficiently convenient to provide the option of a real alternative to the car? Or, in practice, was there no easy alternative to the use of the private car to access services from the site? The hail and ride bus route was approximately 0.5 of a kilometre from the site and the Inspector said that the road between the appeal site and the bus service "is not especially conducive to walking as there are no footways, cars travel fairly fast and forward visibility is, in places, restricted."

[20]It will be noted that the Inspector did not conclude that the site was well located in sustainability terms; rather, his conclusion is fairly described as somewhat tentative "in this case I do not consider the appeal site is unacceptably poorly located for access to facilities." The difference between this somewhat tentative expression of view and the view of the first defendant that the site was "relatively unsustainable" although important is, in reality, wafer-thin and plainly a matter of planning judgment rather than fact of or inference from fact.

[21]I turn, therefore, to the reasons challenge. In the Thompson case the Inspector drew the threads together in his overall conclusions in paragraphs 107 to 110 and then dealt with the subject of human rights in paragraphs 111 and 112. For the purposes of this application, paragraphs 108 to 110 are of particular relevance. "108. In order to justify inappropriate development in the Green Belt it is necessary to demonstrate that the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In this case there is harm by reason of inappropriateness and by way of loss of openness. There is some, limited, harm to the character and appearance of the area. Against this harm must be balanced the following material considerations.• Government policy seeks to encourage Gypsies to provide and manage their own sites.

• There is an unmet need for additional sites in the borough.

• Due to the extent of the Green Belt and other constraints such as Metropolitan Open Land, and due to land values within the built-up area, the only realistic area for Gypsy sites is within the Green Belt. This is acknowledged in the Hearn Report.

• There is no policy relating to the provision of Gypsy sites in the UDP. The relevant policy in the more up-to-date London Plan is the catalyst for the report by WS Planning; although due, this has been delayed and has not yet been received.

• Temporary planning permission has been granted in respect of previous appeals (Salt Box Hill (February 2002) and Waldens Farm (June 2003)) on the basis that an assessment would be carried out. The Hearn Report was published in May 2003. In February 2004 the Council resolved to set up a Working Party. That has not yet reported; a further report (WS Planning) was commissioned in December 2004.

• Policy H5 of the emerging UDP was not informed by a quantitative assessment of need, as required by Circular 1/94 and PPG3. Indeed there has been no published quantitative assessment of need since Circular 1/94 was issued. The Hearn Report only includes a 'conservative estimate' of need. The WS Planning Report has been delayed.

• Policy H5 of the emerging UDP contains a criterion that requires sites to be outside any areas of constraint. In Bromley that is not realistic. Consultation with Gypsies and their representative bodies during the preparation of the emerging UDP was severely limited.

• The shortage of suitable sites relates not just to this borough but to surrounding boroughs and districts. If the appellant is evicted he would be likely to resort to unauthorised sites, possibly elsewhere in the Green Belt. The probability is that the family would be frequently moved on, resulting in severe disruption to the children's education.

• The likelihood of the appellant finding suitable alternative accommodation is severely limited. The Officers' report to Committee following receipt of the Hearn Report described the problem of identifying sites as 'insoluable'. The WS Planning report will look at a wider area.

• The bridleway to the east is a private permissive bridleway; it is not a public right of way. In any case views into the site from it are restricted by an earth mound. 109. I find the case to be finely balanced. However, in my view the considerations that weigh in favour of the development, taken either individually or collectively, do not clearly outweigh the identified harm to the Green Belt. 110. In the particular circumstances of this case, however, I acknowledge that to dismiss the appeal would be likely to result in the appellant having to move off the site with no alternative available, resulting in him having to resort to unauthorised sites and living by the roadside. While there is little evidence to suggest that the appellant has carried out a significant search for sites, the Council has commissioned a further Report (WS Planning) and this is awaited. The development undoubtedly causes harm to the openness of the Green Belt, and so permanent planning permission would not be appropriate. However, as the development does not result in serious harm to the character and appearance of the area, I consider that the appellant should be permitted to remain temporarily on the site for a limited period. This would enable him to make a full search for alternative sites and also enable the Council to act on the report by WS Planning. In my opinion a temporary period of 3 years would be a reasonable timescale for this."

[22]The decision letter, dated 21st September 2005, dealt with three other appeals in addition to the Thompson appeal. It is common ground that there is no material difference for present purposes between the issues that were raised in all four appeals. In paragraphs 14 to 16, the first defendant dealt with the issue of harm to the Green Belt. Having noted that inappropriate development is by definition harmful to the Green Belt, the first defendant continued in paragraphs 15 and 16 as follows:

"The Secretary of State attaches great importance to the purposes of including land within Green Belts. Two of the five purposes are to prevent the unrestricted sprawl of large built-up areas, and to safeguard the countryside from encroachment. The Secretary of State considers that the appeal sites are close to an urban area, and vulnerable to development pressure. He considers that the appeal developments represent significant encroachment into the Green Belt, contrary to the purposes outlined in paragraph 1.5 of PPG2. 16. For the reasons given in [paragraph 78 of the Inspector's report] the Secretary of State shares the Inspector's view that in addition to the harm by inappropriateness there is additional harm caused by the development though loss of openness of the Green Belt. He also agrees with the council ... that the appeal developments represent a form of urbanisation of the Green Belt. For the reasons given in [paragraphs 81 to 82 of the Inspector's report] the Secretary of State agrees with the Inspector that the character of Layhams Road is predominantly rural, and gives significant weight to this fact. He also agrees with the Inspector [IR 82] that, despite the proximity of the Keston Park Showmen's site, the character of the area is not determined by that development. The Secretary of State considers that the appeal developments cause considerable harm to the Green Belt by reducing its openness and introducing urbanising encroachment."

[23]The first defendant then considered the harm to the character and appearance of the countryside, and concluded in agreement with the Inspector that this was limited, although he said that that did not detract from the substantial harm done to the Green Belt, to which he gave significant weight.

[24]Paragraph 19 dealt with the issues of sustainable development (see above). In paragraphs 20 and 21 the first defendant agreed with the Inspector's assessment of "very special circumstances", and in paragraph 22 the first defendant agreed with the Inspector's assessment under the heading "Alternative sites".

[25]Having dealt with the issues of education and health, the first defendant's conclusions in paragraphs 25 and 26 were as follows:

"Conclusion on very special circumstances 25. The Secretary of State has considered the lack of a quantitative needs assessment by the Council, the need for additional sites in the area, the lack of alternative sites, the personal need of the appellants and their families for sites, and the educational and health needs of those residents on the appeal sites. These are considerations which weigh in support of the proposals. However, the Secretary of State agrees with the Inspector [IR109] that the considerations put forward do not amount to very special circumstances, either individually or cumulatively, sufficient to clearly outweigh the substantial harm to the Green Belt which he has identified, from inappropriateness, loss of openness, and introduction of urbanising features. Temporary permission 26. The Secretary of State has considered the question of temporary planning permission in the light of his policies in Circular 11/95, 'The use of conditions in planning permission', with particular reference to paragraphs 109 and 110 of this Circular, and in the light of the Inspector's conclusions in [paragraph 110 of the report]. The Secretary of State does not consider that a temporary planning permission is justified, given his conclusions on the substantial harm the developments cause to the Green Belt, both through inappropriateness, reduction in openness and urbanising encroachment into the countryside. The Secretary of State also considers that, in the light of his conclusions on the overall planning balance in these appeals, personal planning permissions are not justified in the case of any of the appeals."

[26]When considering the adequacy of those reasons it is important to appreciate the very narrow (albeit vital from the claimant's point of view) area of difference between the first defendant and the Inspector. Both agreed that there were powerful special circumstances in favour of granting planning permission. Equally, both were agreed that those circumstances were not so powerful as to justify the grant of a permanent planning permission.

[27]Against this background the Inspector explained, in paragraph 110 of his report, why a temporary planning permission would, in his view, be appropriate. Although there was harm to the openness of the Green Belt, there was not serious harm to the character and appearance of the area, and a temporary planning permission would enable, firstly, the appellant to make a full search for alternative sites and, secondly, the Council to act on the report by WS Planning. Dismissing the appeal would be likely to result in the appellant having to move off the site with no alternative available.

[28]It is plain from paragraph 26 of the decision letter that the Secretary of State did not take issue with these factors. Rather, he placed greater weight on what he considered was the substantial harm that was done to the Green Belt, more particularly described in paragraphs 15 and 16 of the decision letter. That is a readily understandable and entirely rational basis for disagreeing with the Inspector. The first defendant returned to the extent of the harm that would, in his view, be done to the Green Belt in paragraph 28 of the decision letter:

"Conclusions The Secretary of State considers that the appeal developments cause substantial harm to a vulnerable area of the Green Belt, through inappropriateness, reduction in openness and urbanising encroachment. He has balanced the harm to the Green Belt against the considerations advanced by the appellant as very special circumstances. The Secretary of State accepts that the appellants have a personal need for a site, that there is a need for additional sites in the borough, that there is a lack of alternative sites, and that no quantitative assessment of need for gypsy sites has been undertaken by the London Borough of Bromley. He gives considerable weight to these factors. He also accepts that the gypsies and their families would benefit from continuity of access to health and education, and gives weight to this, in particular acknowledging the adverse impact of disruption on the children's education. However, he considers that these factors, neither individually nor collectively, amount to very special circumstances of sufficient weight to clearly outweigh the harm to justify inappropriate development in the Green Belt. He also considerstemporary permission would not be appropriate, giventhe substantial harm the proposals do to the GreenBelt. The Secretary of State therefore concludes that there are no very special circumstances which suggest he should determine the proposals other than in accordance with the development plan."

(emphasis added)

[29]In brief summary, the Inspector considered the harm to the Green Belt was such that a permanent permission would be inappropriate, but that the harm was not so substantial that temporary planning permission was inappropriate. The Secretary of State disagreed on the latter point and was of the opinion that the harm was so substantial that no planning permission, whether permanent or temporary, should be granted. Whether the harm to the Green Belt was so substantial was pre-eminently a matter of planning judgment for the Secretary of State.

[30]Mr Masters submitted that the first defendant's approach was inconsistent with the approach that had been taken in two other decision letters in relation to Salt Box Hill and Waldens Farm. In those two cases (both sites in the London Borough of Bromley) the first defendant, and an Inspector appointed by the first defendant, had concluded that very special circumstances, including the lack of alternative sites and the local planning authority's failure to carry out the necessary assessment of need for such sites, justifies the grant of temporary planning permission for so long as those circumstances existed.

[31]However, Mr Masters' submission overlooks the point that the lack of alternative sites and the local planning authority's failure to carry out the necessary assessment was only part of the special circumstances in those cases. More to the point, in each case the special circumstances were weighed against the harm done to the Green Belt by those two developments. The Inspector in the Thompson appeal clearly considered those two decisions (see paragraph 108 of his report above). He did not specifically rely upon them when setting out his reasons for concluding that a temporary planning permission would be appropriate in paragraph 110 of his report. The Secretary of State agreed with the Inspector's assessment of the very special circumstances, including all of the factors mentioned by the Inspector in paragraph 108 of his report. But he took the view that the harm done to the Green Belt by this particular development was so substantial that even a temporary planning permission should be refused. Since the harm done to the Green Belt by each site had to be considered individually it cannot be said that there is any inconsistency between these decisions.

[32]The inconsistency argument was not pursued by Mr Rudd since the Salt Box Hill and Walden's Farms decisions were not mentioned to the Inspector in the Powell case, otherwise Mr Rudd's submissions as to the adequacy of the first defendant's reasoning were similar to the submissions made by Mr Masters. In the Powell case the Inspector's overall conclusions are to be found in paragraphs 65 to 69 of his report:

"65. The site lies within the Metropolitan Green Belt where the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open. The use of this land for the stationing of caravans/mobile homes, and all that entails, reduces the openness of the appeal site. The use also constitutes an encroachment into the countryside and as such is contrary to one of the five purposes of including land within the Green Belt. Consequently the proposal is inappropriate development and harmful to the Green Belt and contrary to local and national planning policy. Substantial weight needs to be attached to this significant harm to the Green Belt in determining the appeal. Paragraph 3.2 of PPG2 makes it clear that very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. 66. I have already identified a number of other considerations that are relevant to the determination of the appeal. In particular I have found that there is a general need for additional accommodation for gypsies in the area and that there would appear to be no alternative sites currently available for the appellant and his family. As a result it is likely, in the event of the dismissal of this appeal, that the appellant and his family would have to return to an itinerant way of life and unauthorised camping. In turn this would be likely to cause severe disruption to the schooling of a number of children on the site. 67. I consider that these other considerations must be awarded significant weight. In my judgment, however, these considerations, even when added together, do not clearly outweigh the significant harm to the Green Belt and consequently do not amount to the very special circumstances required to justify the use [of the land] on a permanent basis. 68. However given the acknowledged difficulties of finding a suitable alternative site within the locality, the review of gypsy accommodation needs currently being undertaken by the Council and the educational needs of a number of children on the site, I consider that a temporary planning permission for a period of 3 years is reasonable. Furthermore as to site does not have a significant impact on the landscape its immediate removal is not required on that basis. A 3 year temporary permission would enable the appellant to continue his search for alternative accommodation and give the Council the opportunity to quantify the extent of the need for additional gypsy accommodation and identify sites. During this time those children on the site attending school could continue with their studies and other younger children on the site could start school or nursery. 69. I have taken into account the history of the site, including the 2002 appeal decision on the site. In determining that appeal the Secretary of State found that the Inspector's suggested three year temporary planning permission was not based on any clearly defined factor or change of circumstances at the end of which the appellant would necessarily be in a better position to have secured a permanent site or their need for a settled base to provide educational stability for the children. I believe what is different today is that the Council have commissioned a study of the housing needs of gypsies and travellers within the District. This will help the quantification of need and assist in the identification in development plan documents of any additional sites that may be required for gypsies. Consequently at the end of the 3 year period it is likely that the need for additional sites for gypsies in the District will be much clearer. At the end of the temporary period any further planning application for the continued use of the site can take into account this factor and any considerations pertinent at that time."

[33]In the decision letter dated 26th October 2005 the first defendant agreed with all of those conclusions, save for the conclusions in paragraphs 68 and 69. The first defendant drew the threads together in paragraphs 26 to 31 as follows:

"Conclusions on very special circumstances 26. The Secretary of State has given careful consideration to the arguments advanced by the appellant and whether these considerations, either individually or cumulatively, amount to very special circumstances to clearly outweigh the harm to the Green Belt. 27. For the reasons given at paragraphs 12 to 16 above the Secretary of State agrees with the Inspector that substantial weight should be attached to the significant harm the appeal proposal causes to the Green Belt. 28. The Secretary of State agrees with the Inspector that significant weight can be given to the need for sites, the appellant's personal need for a site, the availability of alternative sites and the personal circumstances of the appellant and his extended family, which he accepts are material considerations in the determination of this case. However, the Secretary of State also agrees with the Inspector's conclusion that these considerations do not, either individually or cumulatively, amount to very special circumstances sufficient to clearly outweigh the harm to the Green Belt by reason of inappropriateness and any other harm. The Secretary of State agrees with the Inspector that, given the harm to the Green Belt, a permanent planning permission would not be appropriate (IR67). Temporary permission. 29. The Secretary of State has carefully considered whether a temporary planning permission is justified in light of his guidance in Circular 11/95, with particular reference to paragraphs 109 and 110, and in light of the Inspector's conclusions at IR68 to 71. The Secretary of State has given significant weight to the need for sites, the appellant's personal need for a site, the availability of alternative sites and the particular circumstances of the appellant and his extended family. 30. The Secretary of State does not consider that the commissioning of a housing needs study by the Council amounts to an expectation that the planning circumstances will change in a particular way at the end of the Inspector's proposed temporary permission, which would be the basis on which a temporary permission might be justified under paragraph 110 of Circular 11/95. Furthermore, in light of the Secretary of State's conclusion on the unacceptable harm caused to the Green Belt by the appeal proposal, he does not consider that a temporary permission is justified. In reaching this conclusion he has also had particular regard to paragraph 109 of Circular 11/95 which states that 'the material considerations to which regard must be had in granting any permission are not limited or made different by a decision to make the permission a temporary one'. 31. Notwithstanding that the Secretary of State has attached significant weight to the need for gypsy sites, the appellant's personal need for a site, the lack of an alternative site and the personal circumstances of the families, he disagrees with the Inspector and concludes that the harm to the Green Belt from inappropriate development and any other harm is such that a temporary permission is not appropriate. The Secretary of State also considers that, in the light of his conclusions on the overall planning balance in this appeal, a personal planning permission is not justified."

[34]The first defendant returned to the matter, having considered the topic of human rights, in paragraph 35 of the decision letter when, having rejected the grant of permanent permission, he said:

"He has given consideration to the possibility of a temporary permission but has concluded that this would be inappropriate as it would not overcome the overriding planning objections which he has identified above. The Secretary of State therefore disagrees with the Inspector's conclusion and he concludes that the appeal should be dismissed."

[35]Once again the first defendant considered the Inspector's reasons for concluding that a temporary planning permission was appropriate, but reached the conclusion that the harm to the Green Belt was such that even a temporary planning permission was not acceptable. The Secretary of State quite simply concluded that the planning objections in this case were so "overriding" that even a temporary permission would not be appropriate. Again, this reasoning is both readily intelligible and entirely rational. Mr Rudd pointed to the care taken by the Inspector in paragraph 69 of the Inspector's report in distinguishing between the circumstances as they existed in August 2005 and the 2002 appeal decision, in which it was concluded that a temporary planning permission would not be appropriate. In the Inspector's judgment, the fact that the Council had commissioned a study of the housing needs of gypsies which would help with the quantification of need and so result in the need for additional sites for gypsies in the district being much clearer in three years' time was a sufficient reason to take a different view. He reached that conclusion in the context of the advice in paragraphs 109 and 110 of Circular 11/95. Paragraph 110 is in these terms:

"Short-term buildings or uses Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that intention, or because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified. For example, permission might reasonably be granted on an application for the erection of a temporary building to last seven years on land which will be required for road improvements eight or more years hence, although an application to erect a permanent building on the land would normally be refused."

[36]The first defendant expressly considered this argument in paragraph 30 of the decision letter. The points made in paragraph 30 are two-fold. Firstly, the fact that a housing needs study has been commissioned does not amount to an expectation that the planning circumstances will change in a particular way so as to justify a grant of temporary permission. The emphasis there is plainly on the word "particular". The Inspector considered that the fact that a study had been commissioned was sufficient justification because it would mean that the need for gypsy sites would be clearer in due course, but the first defendant did not accept that that was a sufficient degree of particularity. However, of greater significance is the further reason which is, in any event, conclusive answer to Mr Rudd's challenge to this decision letter. As the decision letter said:

"Furthermore, in light of the Secretary of State's conclusion on the unacceptable harm caused to the Green Belt by the appeal proposal, he does not consider that a temporary permission is justified."

[37]I have already referred to paragraph 35 of the decision letter which refers to what were, in the first defendant's view "the overriding planning objections" to the appeal proposal. Thus, once again one has the position that, whereas the first defendant and the Inspector were ad idem on the fact that the harm to the Green Belt was sufficiently grave to warrant a refusal of permanent planning permission, the first defendant took the view that the harm done by this proposal to the Green Belt was so serious that even a temporary permission was not justified. In those circumstances, the first defendant's reasoning was both rational and adequate.

[38]For those reasons both of these challenges must be dismissed.

[39]MR MOULD: My Lord, I would ask the court to make orders to that effect, and I also apply for costs on behalf of the first defendant in relation to both claims. My Lord, I understand that Mr Powell is legally assisted, so the order I seek in relation to him is no more than the usual, that of the lottery order; and in so far as the Thompson claim is concerned I understand that Mr Thompson and Mr Cash are also in receipt of certificates for assisted persons -- Mr Doran and Mrs Doran are not. They are privately funded litigants and in those circumstances, if that is right, what I ask for is an order for costs against those who do not have the benefit of certificates, and I would invite your Lordship to assess those costs summarily; but then obviously an order for costs in relation to Thompson and Cash would be on the basis of the ---

MR JUSTICE SULLIVAN: I am sorry, have the Dorans actually appealed? They have not turned up today.

[41]MR MASTERS: They did appeal originally. My instructing solicitor appealed on their behalf. They did not obtain legal aid, and therefore though they turned up today -- in terms of the applications I have limited it to Cash, but of course I accept that they appear still on the application as claimants, although they have not actually participated. It is a difficult matter, my Lord. I say that you do have discretion in these matters and I would ask you to exercise that discretion in this case in the way of not penalising them.

[42]MR JUSTICE SULLIVAN: I am bound to say if someone appeals then realises they do not get legal aid and so they do not then pursue it further, and although they come along to listen, they do not intervene, they do not take up any more court time, they have done all they possibly can not to increase the costs and I would be very reluctant to grant a public authority costs against them in those circumstances. So far as the legally aided ---

[43]MR MASTERS: I could resist it in the way my learned friend put the national lottery on the ---

MR JUSTICE SULLIVAN: Against the others.

[45]MR MASTERS: Against the others.

[46]MR JUSTICE SULLIVAN: But there is absolutely no reason why the Dorans it seems to me, even though they have come along to listen, should be made to pay any costs. Unless you want to say anything else or press it further.

[47]MR MOULD: I will not press the point, but what I will say, if your Lordship will forgive me, it would be nice to have been told that before today.

[48]MR JUSTICE SULLIVAN: It would have been, I think. Given that effectively the issues raised by the legally-aided claimant were identical with those by the non-legally-aided ones and the non-legally-aided ones have not participated in any way so as to extend matters or add to the costs -- I indicated how I think, and you are not pushing me too much.

[49]MR MOULD: I am not going to press the point.

[50]MR JUSTICE SULLIVAN: The applications are dismissed. In the Powell case Mr Powell will pay the first defendant's costs but that is only on the usual legal aid basis. That is not to be enforced without the leave of the court. You want, anyway, a detailed assessment, Mr Rudd, for community legal services purposes in any event? Those costs are to go for detailed assessment. Who other than Mr Thompson are legally aided? Is it just Mr Thompson?

[51]MR MASTERS: Mr Thompson and Mr Cash.

[52]MR JUSTICE SULLIVAN: In the Thompson case Mr Thompson and Mr Cash are to pay the first defendant's costs, but such costs are not to be enforced without the permission of the court. No order in respect of the costs of the non-legally-aided appellants. Mr Masters, you have detailed assessment for LSC purposes. Is there anything else I should do?

[53]MR MASTERS: My Lord, at the risk of wrath, I would ask for permission to appeal.

MR JUSTICE SULLIVAN: You always do.

[55]MR MASTERS: Not always, I have to say.

[56]MR JUSTICE SULLIVAN: I cannot remember when you have not, but I would be prepared to withdraw it if it is an unfair comment.

[57]MR MASTERS: I think on the last occasion I came before my Lord I did not, it was a little while ago, you may remember that case. The issue has taken some time, the reasons matter, in relation to jurisdiction point; but it raises matters of significant importance, particularly in view of the way that one has to view the Secretary of State's role in these matters.

[58]MR JUSTICE SULLIVAN: I will hear from you, Mr Rudd, if you have any application to make. I am not necessarily encouraging you, but if you have one make it now and then I will ---

[59]MR RUDD: My Lord, I make the same application only on the basis that because it is the same arguments that were raised I do not seek to expand on them.

[60]MR JUSTICE SULLIVAN: Thank you very much. I do not need to trouble you, Mr Mould. I am not going to grant permission to appeal. I do not think that there is any real prospect of success in persuading any court that the court itself should embark on a proportionality exercise in respect of documents that were not before the decision taker in the planning context, and I am not persuaded that there are any other compelling circumstances which justify the grant of permission.