THE LONDON BOROUGH OF BROMLEY v THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT [2008] EWHC 3145 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2008] EWHC 3145 (Admin)Case No Case No: CO/10976/2007; CO/1Q785/2007Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
THE LONDON BOROUGH OF BROMLEYClaimantTHE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTFirstDefendantMARIA FRIENDSecondDefendant
Before
HIS HON. JUDGE CURRAN QC,SITTING AS A DEPUTY JUDGE OF THE HIGH COURTPatrick Darby (instructed by Mark Bowen Director of Legal (and other) Services, Bromley London Borough Council) for the ClaimantsHereward Phillpot (instructed by the Treasury Solicitor) for the First DefendantValerie Easty (instructed by the Community Law Partnership) for the Second Defendant
[1]His Hon. JUDGE CURRAN QC : I direct (under CPR Part 39 PD 6.1) that no tape-recording or short-hand note need be made of this judgment, and that copies of this version may be treated as authentic. Background 2. This case concerns some land within the Green Belt near Swanley, in Kent. Since the year 2003 the land has been owned by Mrs. Marilyn Chambers. Mrs. Chambers is the daughter of the Second Defendant in these proceedings, Mrs. Friend. They are members of an extended Romany Gypsy family, the other members of the family being Mr. Friend, who is the husband of Mrs Friend, Levi their son, and Mrs. Chambers' two sons. In 2006 Mrs. Friend made an application for planning permission for development of the land as a caravan site for two gypsy families with two caravans, and a horse-drawn traditional caravan.[3]The planning authority is the London Borough of Bromley ("LBB"), the Claimants in this case. On 19 th October 2006 they refused to grant planning permission, and on 22 nd December 2006 they issued an enforcement notice requiring the discontinuance of the use of the land for stationing caravans and consequential matters. The family's gypsy status is undisputed.[4]Mrs. Friend appealed against both the decision and the notice, and an inspector, Mr K. L. Williams, ("The Inspector") was appointed by the First Defendant, the Secretary of State for Communities and Local Government ("The Secretary of State") to conduct an Inquiry and to decide the appeals. The Inspector conducted the Inquiry on the 4 th September 2007 and his decision is dated the 2nd November 2007. He allowed the appeals, granting temporary planning permission subject to conditions (one of which was that the permission was limited to a period of two years) and he quashed the enforcement notice. LBB apply to quash the decision granting temporary permission and appeal against the quashing of the enforcement notice. The basic issue[5]The Inspector decided, at paragraph 31 of his decision, that harm caused by the development to the Green Belt would be such that a permanent permission should not be granted. The basic point taken by LBB is that the Inspector, having made that finding, "failed to take into account a material consideration" namely advice contained in Planning Circular 11/95 at paragraph 109, i.e. 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. Thus, the reason for granting a temporary permission can never be that a time-limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities. If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted, then the only course open is to refuse permission. These considerations will mean that a temporary permission will normally only be appropriate either where the applicant proposes temporary development, or when a trial run is needed in order to assess the effect of the development on the area." [Emphasis added.][6]In the decision letter the Inspector did not expressly refer to paragraph 109. He did, however, refer to a later Circular concerning Planning for Gypsy and Traveller Caravan Sites, "01/2006" issued on 1 st February 2006, and, in particular, to paragraphs 45 and 46 of that Circular."45. Advice on the use of temporary permissions is contained in paragraphs 108 - 113 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 [i.e. its 'Development Plan Document']. 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." The decision letter[7]In order to understand the way in which the Inspector arrived at his decision it is in my view helpful to set out some preliminary passages from the decision letter. The Inspector considered the main issues in the case, and the applicable planning policies as follows:
"Main Issues "3. The main issues are: The effect of the gypsy caravan site on the Green Belt and on the character and appearance of the area; The need for and provision of sites for gypsies and travellers in the area; The appellant's accommodation needs and personal circumstances; The availability of alternative sites; Accessibility to services and community facilities; and, The overall balance with regard to a permanent or temporary planning permission." "
Planning Policies "4. The development plan includes the London Plan, 2004 and the London Borough of Bromley Unitary Development Plan, 2006 (UDP). London Plan policy 3A.11 says that boroughs should assess the accommodation needs of gypsies and travellers and review capacity. UDP policies should protect existing sites, provide criteria for identifying new sites and identify sites if shortfalls occur. UDP policy H6 safeguards gypsy sites at Star Lane, St.Paul's Cray and at Old Maidstone Road, Swanley. It provides criteria for new sites. These include requirements that proposals are outside areas of constraint, avoid adverse effects on the amenities of surrounding development and are well related to schools, other facilities and public transport. UDP policy G1 does not permit inappropriate development in the Green Belt unless very special circumstances are demonstrated which clearly outweigh harm by reason of inappropriateness or any other harm. Amongst other things, it says that the material change of use of land in the Green Belt will be inappropriate unless it maintains openness and does not conflict with the purposes of including land in the Green Belt. [Emphasis added.] "The effect on the Green Belt and on the character and appearance of the area "5. The site extends along the southern side of part of Hockenden Lane and of Trunks Alley, which is a byway and footpath. The surrounding area is generally open in character, with limited, sporadic and ribbon development. The mobile homes and the covered caravan are at the eastern end of the site, close to a stable block, for which planning permission was granted in 2006. The remainder of the site provides grazing for three horses, kept for domestic rather than business purposes. Vehicular access is via a gated entrance, which was part of the 2006 permission. "6. The land is in the Metropolitan Green Belt and the development conflicts with UDP policy H6 with regard to its location within an area of constraint. Paragraph 49 of Circular 01/2006 says that new gypsy and traveller sites in the Green Belt are normally inappropriate development and the Council and appellant agree that this is inappropriate development I agree with that view. Inappropriate development is, by definition, harmful to the Green Belt. The openness of the Green Belt is also harmed, although the extent of harm is limited by the small scale of the development. The caravans have also resulted in an encroachment of development into the countryside and have eroded the gap between Swanley and St. Paul's Cray to a small extent. They therefore conflict with the purposes of including land in the Green Belt. [Emphasis added.] "7. The site is well screened by trees and hedgerows along much of its northern boundary and some of the eastern boundary. Views of the caravans from immediately west along Hockenden Lane are limited by this vegetation and by the stable block. Views from Trunks Alley are also constrained, although the mobile homes are prominent when seen from public viewpoints near the site entrance. Hedge planting has been carried out along the southern boundary but is not yet mature and there are longer distance views of the caravans from further west along Hockenden Lane. There is some limited harm to visual amenity, which could be further reduced in the medium term by additional planting. The encroachment into the countryside also causes some harm to the area's rural character. "Sites for Gypsies and Travellers "8. Circular 1/2006 refers to the national need for further provision of sites for gypsies and travellers and seeks to address under-provision. The Council acknowledges the need for further sites in Bromley. A study carried out by WS Planning for the Council in 2005 identified a need for 25 further permanent pitches and 10 transit pitches. The appellant considers this to be an underestimate due to additional need arising from household formation and from gypsies currently living in houses. She considers a more realistic figure to be 33 permanent pitches. As at January 2007, the bi-annual count for Bromley showed 37 caravans on authorised sites, of which 34 were on socially rented sites, and 46 caravans on unauthorised sites. "9. The Council is participating in a Gypsy and Traveller Accommodation Assessment (GTAA) but results are not yet available...... Sites will be allocated in a Site Specific Allocations development plan document (DPD), to be adopted in 2010. However, the Council acknowledges the difficulty of finding suitable sites within the Borough. A study carried out for the Council in 2004 ... concluded that it would be extremely difficult to find additional sites', given that all land within the borough, outside the built-up areas, is constrained by designation as Green Belt or Metropolitan Open Land. "10. There are two publicly owned sites in the borough, Star Lane and Old Maidstone Road. These sites have been run by the Novas Housing Association. There are unimplemented planning permissions for 3 new pitches at Star Lane and 2 at Old Maidstone Road. Novas has decided to withdraw from management of the sites and the Council intends to acquire ownership and refurbish the sites. At the time of the Inquiry there were no vacancies at the Star Lane site and five vacant pitches at the Old Maidstone Road site. The Council also referred to the Old Chalk Pit site, which is also on Old Maidstone Road and has a Lawful Development Certificate for use as a 25 pitch residential caravan site. This site is not restricted to use by gypsies and travellers. "11. I conclude on this matter that there is a need for further sites in Bromley. The Council intends to acquire and improve existing sites and provide more sites. However, further site allocation through the LDF process will not occur until 2010." Particular considerations[8]The Inspector considered Mrs Friend's accommodation needs and the family's circumstances and concluded, for reasons which are not disputed, that there were "substantive circumstances" in favour of Mrs Friend's residential use of the site, paying particular attention to her state of health and her grandchildren's educational needs.[9]The Inspector then considered the availability of alternative sites which could accommodate the family and their caravans. He concluded, again for reasons which are not questioned, that there were no other realistic alternative sites. He also considered matters such as access, which on a revised basis was satisfactory, and the effects on neighbours, and he concluded that on balance the proposal was acceptable with regard to its effects on neighbours.[10]He also said that while he had regard to many other appeal decisions to which he had been referred, his decision rested on the particular circumstances of this case with regard to the balance between the extent of harm and all other material circumstances. Taking this into account, he attached, he said, limited weight to the danger of creating a precedent. Permanent permission[11]Having weighed all relevant considerations, he said that the harm to the Green Belt and to the area's character and appearance outweighed the factors which told in favour of Mrs Friend's appeal. Amongst those factors he drew attention to the point that the lack of alternative sites was a problem which would not be likely to be remedied until 2010. But he concluded that, "They do not amount to very special circumstances which would justify the granting of a permanent planning permission in the Green Belt. If the appeal is dismissed it is likely that the appellant and the other members of the extended family would be required to vacate their home with no certainty of suitable alternative accommodation. This would be an interference with their rights under Article 8 of the European Convention on Human Rights, the right to respect for private and family life, and under Article 1 of the First Protocol, which refers to the protection of property. With regard to a permanent permission, and taking into account the extent of harm I have identified, I find that the effect on the rights of the appellant and her family are outweighed by the effect of the development on the wider public interest." (Decision letter: paragraph 31.) Temporary Permission[12]Having made that decision, the Inspector then considered whether he might nevertheless grant temporary permission. He noted, in paragraph 32, that under paragraph 45 of Circular 1/2006 it was stated that temporary permissions should be considered where "there is an unmet need but no available alternative gypsies and travellers [sic] site provision in the area but 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," and that under paragraph 46, where an authority is preparing a site allocations document, substantial weight should be given to unmet need in considering whether a temporary planning permission is justified.[13]He went on to say: "Adoption of the Council's LDF site allocation document is expected in 2010. Planning permission would then need to be obtained for allocated sites. A four year temporary planning permission would relate well to that timetable. However, in my view there is a reasonable prospect that an alternative site could be available sooner than this. At the Inquiry, the Council referred to its determination and firm intention to acquire and refurbish the Star Lane and Old Maidstone Road sites and there are unimplemented planning permissions to extend both sites. I appreciate that, as yet, there is no formal Council resolution to purchase and refurbish the sites. Funding has yet to be allocated for those purposes and the relevant management structures need to be put in place. However, it seems to me that a two year temporary planning permission would provide a sufficient period for the Council to take action with regard to these sites. It would also allow the situation to be reviewed at the end of that period." [Paragraph 33, emphasis added.][14]The Inspector said that in considering a temporary permission, he had taken into account all of the matters he had referred to in respect of a permanent permission. Although the Council was concerned that a temporary permission could lead to permanent occupation of the site, paragraph 46 of Circular 1/2006 stressed that a temporary permission should not be regarded as setting a precedent for the determination of future applications for permanent use. (He had, as already noted, in any event considered and dismissed this point as an anxiety.) On the basis of a two-year temporary permission, he considered that harm to the Green Belt and the other harms he had identified would persist only for that temporary period. That, together with the prospect of alternative site provision being made within that timescale, weighed in his view heavily in favour of the appellant. With regard to a two year temporary permission, he held that the harm to the Green Belt and the other harms were clearly outweighed by other considerations to the extent that the very special circumstances necessary to justify planning permission were demonstrated. Taking this into account, a two year temporary permission would not conflict with UDP policy G1, and he concluded by saying:
"36. Given the need for and lack of suitable alternative sites in the locality, the particular accommodation needs and circumstances of the appellant and other members of the extended family and the likely timescale for the provision of an alternative site, I consider that a temporary planning permission for a period of two years is appropriate and reasonable in all the circumstances. I am satisfied that the protection of the public interest cannot be achieved by means which are less interfering with the appellant's rights. The limitation of permission to a two year period is proportionate and necessary in the circumstances and hence would not result in a violation of rights under the European Convention on Human Rights, including rights under Article 8 and Article 1 of the First Protocol." [Emphasis added]
No express mention was made of paragraph 109 of Circular 11/1995. The basis for the Claimants' challenge to the decision[15]In making his decision in that way, Mr Patrick Darby, counsel for LBB, submits that the Inspector wholly failed to have regard to the provisions of paragraph 109, and in particular to the following words:
"....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. Thus, the reason for granting a temporary permission can never be that a time-limit is necessary because of the effect of the development on the amenities of the area." [Emphasis added.]
[16]Mr Darby submits that effect of this part of the paragraph is quite clear: if there are grounds for refusing permanent permission, and, if those grounds cannot be met by conditions, they should also be grounds for refusing temporary permission, if the damage to amenity cannot be accepted. It was unacceptable damage to amenity which the Inspector held was the reason for refusing permanent permission.[17]Further, Mr Darby says that if the Inspector had followed paragraph 109 then he would not have granted this temporary permission, or, if he had, he would have given reasons for not following it. He made no reference at all to the paragraph, and that "is a symptom" of his failure to take it into account, and thus of the irrationality of the decision.[18]Mr Darby relies upon the case of Gransden v. Secretary of State for the Environment 54 P. & C. R. 86. He points first to the general proposition enunciated by Woolf J. (as he then was) at p. 87, that policy statements such as the circular in question are "material considerations" to which "regard should be paid in considering the outcome" of a planning appeal, and if there is to be a departure from such a policy statement, clear reasons should be given for it. Counsel also relies upon the five particular matters raised by the judge at pp. 92 and 94. For the purposes of the present case these may be summarised as follows:(1) Was the inspector's approach in fact inconsistent with the policy?(2) If the policy is a lawful policy, has the Inspector had regard to it?(3) Whilst the Inspector is not bound to follow the policy, has he given a valid reason for departing from it?(4) Has the Inspector properly understood the policy?(5) If no proper regard has been given to the policy, is the case of the exceptional kind in which the court can say that the decision would have been the same in any event?[19]LBB also relied upon Boulevard Land Ltd v. Secretary of State for the Environment [1998] J.P.L. 983, for the proposition that if there was(1) no indication whether the Inspector had regard to the policy at all, or(2) no indication why, if he did have regard to it, he thought fit to make an exception to it, the decision should be regarded as irrational. In that case it was held that the question of whether an Inspector has had regard to a policy in reaching his decision was one that had to be answered in the light of all the circumstances. It was not right to approach the matter on the basis of assumptions. The fact that policy statements and circulars of the kind involved in the instant case were understood to be read by those responsible for taking decisions and were likely to be familiar to them was one of the circumstances to be taken into account. The simple absence of reference to a policy would be unlikely to be sufficient in itself to show that the policy had been left out of account. In view of the importance the inspector had attached (in that case) to the issue of prematurity, a combination of the absence of any explanation on the point and his failure to say whether he considered the proposals to be in accordance with the development plan, meant that his reasons were inadequate and the appellants had been prejudiced as a result. Thus it is submitted here that caution is advisable in making any assumptions as to what the Inspector has actually had regard to.[20]My attention was also drawn to the case of South Bucks D.C v Porter (No. 2) [2004] 1 WLR 1953 , HL, and in particular to paragraphs 29, 30 and 36 of the speech of Lord Brown of Eaton-under-Heywood in which he quoted from various passages in the speech of Lord Bridge in Save Britain's Heritage v Number 1 Poultry Ltd. and Others [1991] 1 W.L.R. 153, at 166-167. Lord Bridge had held that:(1) A consistent standard of reasoning is required in all planning decisions.(2) The degree of particularity required will depend entirely on the nature of the issues falling for decision.(3) An opponent of development, whether it be the local planning authority or (as in that case) some unofficial body like "Save Britain's Heritage", may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decision is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications. (In that context Counsel for LBB said that his clients had in recent years been involved in a series of cases involving attempts at development of private gypsy sites on Green Belt land, and further cases were outstanding: paragraph 109 played a prominent part in the refusal of permission in almost all of those cases in the past, he said.)[21]At paragraphs 35 and 36 of his speech in the South Bucks case, Lord Brown summarised the relevant principles as follows. The reasons for a decision must be intelligible and they must be clear. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached upon the principal important controversial issues. Although the reasons given may be brief the reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter. (Mr Darby entirely reasonably suggested that the words "or by failing to follow some important policy," might be included.) A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.[22]As I have already mentioned, Mr Darby criticised the reasoning of paragraph 36, from which I have taken the quotation (at paragraph 14 above,) upon the basis that the failure to make reference to paragraph 109 is a "symptom of the wrong way in which he approached the decision-making exercise." The Inspector's approach was inconsistent with the Circular because harm to the Green Belt which would prevent permanent permission should also prevent temporary permission. The reasoning of paragraph 35 is impermissible, it is submitted, without the Inspector's inclusion of an observation such as "I have considered paragraph 109 and there are good reasons for departing from it, which are as follows...."[23]This is not a case, as I understand it, in which it is suggested that the Inspector failed properly to understand the policy: all that LBB submit is that "since he did not mention it, it is impossible to discern any error of understanding." I do not accept that submission, as in my view it is clear that the Inspector understood the policy as it had been developed by the 2006 Circular, and properly applied it for reasons which he made clear. I consider those reasons to be sound. The Inspector's omission of any express reference to the particular part of paragraph 109 betokens no lack of understanding, or incorrect approach. As Mr Phillpot, counsel for the Secretary of State, submitted (in effect) when I invited all three counsel to say what the Inspector might have said had he included a specific reference to the paragraph, any such reference was unnecessary and otiose, for reasons which will appear below. (Miss Easty, for Mrs Friend, having submitted her own helpful skeleton argument, adopted Mr Phillpot's submissions as her own.) The First and Second Defendants' submissions[24]In dealing with LBB's complaint that the Inspector evidently decided that the harm to the Green Belt could not be accepted, Mr Phillpot, for the Secretary of State, drew attention to the sentence of paragraph 109 which reads, "If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted, then the only course open is to refuse permission." It is plain, he submits, that the Inspector decided that the harm which would be caused by permanent retention of the proposed development was not acceptable, but, since there was a reasonable prospect that an alternative site would become available at the end of two years (see paragraph 33 of the decision letter,) he concluded that the harm could be accepted for that limited period.[25]The introductory paragraphs to Circular 11/95 read as follows:
"1. DOE Circular 1/85 ... gave advice about the use of planning conditions. Much of that advice remains relevant, but it contains a number of references to legislation which has been replaced or amended since the Circular was published. This Circular brings these references up to date and incorporates additional policy guidance issued since 1985, for example, in Planning Policy Guidance Notes: in particular, it reflects guidance on the use of conditions in respect of transport, retail development, contaminated land, noise and affordable housing. Additional advice has been included in respect of design and landscape, lorry routeing, [sic] 'granny' annexes, staff accommodation, access for disabled people, holiday occupancy, and nature conservation/endangered species (see Index for details). The Circular also takes account of court decisions ... "2. The power to impose conditions when granting planning permission is very wide. If used properly, conditions can enhance the quality of development and enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission. The objectives of planning, however, are best served when that power is exercised in such a way that conditions are clearly seen to be fair, reasonable and practicable. This Circular, with its Annex, sets out guidance on how this can be achieved. "3. Paragraphs 14-42 of the Annex, stress that conditions should only be imposed where they are both necessary and reasonable, as well as enforceable, precise and relevant both to planning and to the development to be permitted. Attention is particularly drawn to paragraphs 15-17 which advise that in considering whether a condition is necessary authorities should ask themselves whether planning permission would have to be refused if the requirements of that condition were not imposed. If it would not, then the condition needs special and precise justification...."
[26]The full terms of paragraph 109 are as follows:
"Principles applying to temporary permissions "109. Advice on minerals permissions is given in Minerals Policy Guidance notes. In other cases, in deciding whether a temporary permission is appropriate, three main factors should be taken into account. First, it will rarely be necessary to give a temporary permission to an applicant who wishes to carry out development which conforms with the provisions of the development plan. Next, it is undesirable to impose a condition requiring the demolition after a stated period of a building that is clearly intended to be permanent. Lastly, 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. Thus, the reason for granting a temporary permission can never be that a time-limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities. If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted, then the only course open is to refuse permission. These considerations will mean that a temporary permission will normally only be appropriate either where the applicant proposes temporary development, or when a trial run is needed in order to assess the effect of the development on the area." 27. Paragraph 110 makes reference to the possibility that 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. It is helpful to set out the whole of this paragraph also: "
Short-term buildings or uses "110. 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."[28]The new circular 01/2006 was introduced, it is stated in an introductory paragraph, paragraph 3, because, "3. ... evidence shows that the advice set out in Circular 1/94 [the previous circular dealing with considerations relevant to gypsy sites] 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."[29]Since paragraphs 45 and 46 of 01/2006 are plainly intended to be read as being consistent with, and not inconsistent with, the 1996 circular, Mr Phillpot submits that if paragraphs 109 and 110 are read with paragraphs 45 and 46 the Inspector's conclusion was entirely reasonable and involved no departure at all from the guidance, but rather a proper understanding of the whole policy as developed in the 2006 circular. I set out paragraphs 45 and 46 again, for ease of reference:
"45. Advice on the use of temporary permissions is contained in paragraphs 108 - 113 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."
[30]Thus, Mr Phillpot's argument runs, the Inspector's main reason for granting a temporary permission, despite finding that a permanent permission would be unacceptable, was because he found that the planning circumstances would change in a particular way in that there was a reasonable prospect of alternative site provision at the end of the two-year period. In those circumstances, having regard to all other appropriate considerations, he found that the harm which he considered unacceptable on a permanent basis would be acceptable for a temporary period. Conclusions[31]I bear in mind, first of all, that the Inspector was required to explain in his letter in clear terms why he had reached his decision, and to make clear the matters which had materially influenced him in arriving at his conclusion. However, the letter is to be read in a straightforward and down-to-earth way, "without excessive legalism or exegetical sophistication": see Clarke Homes v Secretary of State for the Environment (1933) 66 P & CR 263 at pp. 271 - 272, per Sir Thomas Bingham MR, as he then was. I should approach the letter looking broadly at the Inspector's findings, not construing it as though it was a statute, but looking at the real sense of the decision: see ELS Wholesale (Wolverhampton) Ltd v. Secretary of State for the Environment (1988) 56 P & CR 69 : "...in my judgment the proper approach to the decision letter in this and other similar appeals, ... is to look somewhat broadly at the findings of the inspector, his reasoning and his decisions, not sentence by sentence at the minutiae but at the real sense and basic content of the decision to which he has come" (per May LJ at p. 79.)[32]In my judgment, approaching the matter upon the basis of Lord Woolf's five tests in Gransden, first, the Inspector's decision was entirely in accordance with the policy of the 2006 circular. My reasons for this view and the question of whether that statement of policy was itself in conflict with the 1996 circular are considered more fully below, at paragraphs 34 - 45 in particular.[33]Secondly, there is no suggestion (nor could there be) that the 2006 circular was anything other than a lawful policy, as was the 1996 circular. The 2006 circular makes express reference to the 1996 circular, and might be said to build upon it. It is therefore surprising for the suggestion to be made that, in those circumstances, the Inspector has failed to have regard to both of them.[34]Thirdly, the Inspector plainly found that the two circulars were not in conflict with each other: if he had considered that they were in conflict, in so closely-reasoned a decision, he would in my judgment unquestionably have said so, and would have addressed such difficulty as may have arisen for him thereby. Instead, he made no reference to any kind of tension between the two. It is clear, in my view, that he did not regard himself as departing from what he correctly understood to be the combined effect of the two circulars.[35]Fourthly, there is the question of the Inspector's understanding of the policy overall. The 2006 circular makes no explicit reference to a change in policy. It does make clear, however, that the 2006 Circular itself involves an explanation of, or in the most general sense a development of, the policy already in force. Its introductory paragraphs would otherwise be otiose. The Inspector was entitled, in my view, to regard the 2006 circular as being an elucidation of developing policy as the Secretary of State had specifically said that evidence had shown the advice the previous (1994) circular dealing with gypsy sites (which obviously pre-dated the more general 1995 policy) had failed to be effective in its aim. It referred specifically to temporary permissions so far as those concerned gypsy caravan sites.[36]It would be surprising if the Inspector, with his professional planning experience, misunderstood the well-recognised policy advice given in the 1995 circular. It was expressly accepted on all sides at the Bar that the contents of paragraph 109 are amongst the most familiar provisions in day-to-day planning practice, and that is therefore a matter which I can and should take into consideration, whilst reminding myself that I must make no assumptions. I also noted Miss Easty's point that the Inspector's attention was specifically drawn to the 1995 circular by the expert reporting on behalf of her client at paragraphs 5.40 and 5.41 of his proof of evidence.[37]Mr Darby did not submit that this was a case in which the Inspector failed properly to understand the policy but said, "since he did not mention it, it is impossible to discern any error of understanding." The only potential error of understanding, it seems to me, is whether or not the Inspector correctly regarded the 2006 Circular as effectively explaining, or to some extent developing, the previous policy, or as being in deliberate tension with it. If he correctly understood it to be the latter, he would, as Mr Darby suggested, have stopped at the point which he regarded as being prohibitive of permanent permission.[38]Since it seems to me that the Inspector did understand, and have proper regard to the policy, the fifth of Lord Woolf's points does not arise. If I am quite wrong about that, I do not think it can be said that the case is of such an exceptional kind that it could confidently be said that the decision would inevitably have been the same if he had.[39]The fact that the Inspector did not make specific reference to paragraph 109 does not in my view demonstrate that he left it out of account. As such a long-established principle of planning policy he must (and this is hardly an assumption, upon the basis of the consensus at the Bar referred to above at paragraph 36) have been very familiar with it. Moreover, it is referred to in paragraph 45 of the 2006 Circular, to which he did make specific reference. Furthermore, paragraph 109 must be read in conjunction with paragraph 110, and then in conjunction with paragraphs 45 and 46 of the 2006 Circular. In the circumstances it would not be appropriate to draw the inference that the guidance in paragraph 109 was left out of account simply because no explicit reference was made to it.[40]I do not accept LBB's contention that there is intended to be any tension between the two circulars. Mr Darby in effect submitted that this was the result of a deliberate decision by the Secretary of State. It would be surprising, if such tension were intentional, for counsel for the Secretary of State to make the submission which he has to the contrary, but that is perhaps not a matter which I should take into account, and I do not take account of it. If any deliberate decision had been made to develop the policy into the state in which LBB contend it stands now, such a decision would have been clear from the wording which was used. In my judgment the wording of paragraphs 45 and 46 is, if anything, to the opposite effect.[41]Nor I do not consider that LBB are substantially prejudiced in the way referred to by Lord Bridge in the Save case. The planning considerations on which the decision is based, particularly as they relate to planning policy, are explained clearly by the Inspector by reference to the 2006 Circular. The impact they may have in relation to the decision of future applications is not difficult to ascertain. If the planning circumstances in relation to matters referred to in paragraphs 45 and 46 are likely to change (as in the instant case) then there will be little, if any, uncertainty.[42]In my judgment if the whole of each circular is looked at, and the two are read together as congruent statements of policy, it becomes clear that if it is "necessary" a temporary condition is appropriate where otherwise planning permission would be refused, i.e. where there is some harm which would be unacceptable on a permanent basis. Mr Phillpot submitted, in effect, that under the combined effect of the two circulars, while it would not be sufficient to say that unacceptable harm on a permanent basis could become acceptable on a temporary basis, that was a necessary pre-condition and there was then the need for an additional factor, which Mr Phillpot called the "something more" factor - i.e. something more than simply making the unacceptable harm temporary. Specific guidance as to what that additional factor might be, he submitted, lay in the last sentence of paragraph 109 and the first sentence of paragraph 110 of the 1996 Circular, and further guidance appeared in paragraphs 45 and 46 of the 2006 Circular. I accept Mr Phillpot's analysis, and I agree with it.[43]In her skeleton argument, Miss Easty made the point that the Inspector envisaged, on the unchallenged evidence before him, a significant change in planning circumstances at or before the end of the two-year period. His decision to grant temporary permission was based upon that consideration, and not because damage to amenity which would be intolerable permanently might be tolerable temporarily. I agree that there is a distinction between the two, and I do not regard it as a distinction without a difference. There is a significant difference between a decision taken with an evidence-based expectation of a change in planning circumstances within a definite and limited period, and the grant of temporary permission as a short-term expedient in the complete absence of any expectation of such a change. The former is permissible under the terms of the two circulars, taken together, whereas the latter is not.[44]In the decision letter, at paragraphs 33 to 35 inclusive, the Inspector made it clear that his expectation of a change in planning circumstances was the additional and distinct factor in this case. There was, on the evidence, a reasonable prospect that an alternative site would become available at the end of a period of two years. The circumstances would then change.[45]If, as the Inspector found, there is evidence of one of the specific circumstances referred to in the following parts of paragraphs 109 and 110, i.e.,"109. ...a temporary permission will normally only be appropriate either where the applicant proposes temporary development, or when a trial run is needed in order to assess the effect of the development on the area.""110. 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. Other matters[46]An illustration of the fact that this was an unimpeachable exercise of planning judgment, Mr Phillpot submitted, lay in the Wychavon case, (unreported, [2008] EWCA Civ 692 ) as the same rationale for the grant of a temporary permission must have existed even though the issue which arises in the instant case over paragraph 109 does not appear to have been raised in that case. Mr Phillpot's contention may be correct, but as the fundamental point which is taken in this case by LBB was not apparently raised in that case, I did not consider that I could properly derive any significant assistance from it.[47]There is, I suppose, the theoretical possibility of testing the correctness of the submission of the Secretary of State by means of a rhetorical question, 'Suppose there had not been the additional factor which he identified, would the Inspector have granted temporary permission?' In my view the answer is that he would not have done so, as he would then have considered himself bound by paragraph 109, and, absent any additional factor, would have been unable to consider a temporary permission. This was not a point which was canvassed in argument, however, and is not one which has influenced the conclusion to which I have come.[48]The question was raised by Miss Easty of the Inspector's findings in relation to the second defendant's rights under the European Convention on Human Rights, in respect in particular of her family life and the educational and medical needs of her extended family, under Article 8 of the Convention and Article 1 of the First Protocol. No challenge has been made in respect of those findings, and the rationality of the Inspector's findings in respect of the Human Rights point is not questioned by LBB. They confine themselves to the narrow point under paragraph 109 of the 1995 Circular. No argument took place upon the possibility (raised by Miss Easty) that the Inspector's decision might stand on Human Rights grounds even if his decision on the particular planning point were held to be irrational on the grounds advanced by LBB. In view of my findings as to the planning point, it is unnecessary to take that matter any further. Decisions on the application and appeal[49]Accordingly, I find that the Inspector's decision discloses no error of law, and both the application and the appeal are dismissed.

Cited in 1 later judgment