“Traveller Status 5 Gypsies and travellers are defined in ODPM Circular 01/2006 as ‘Persons of nomadic habit of life, whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently,..’ The site is occupied by the appellants and their two year old son. At the date of the inquiry, the birth of the couple’s second child was imminent. 6 The appellants are not of traditional gypsy descent, but as the definition in the Circular explains, gypsy and traveller status is not dependant on ethnic origin, and a nomadic habit of life can be acquired over a period of time. The Courts have held that the word ‘nomadic’ indicates a sense of purpose for the travelling, and that there should be some recognisable connection between the wandering or travelling and the means whereby the persons concerned make or seek their livelihood (R v South Hams DC, Document 7). 7 I have read that Mr Langton started travelling with a donkey, mule and cart in 1994, but there is no clear evidence of any economic purpose being associated with travel at this time. From 1998 -2002 there are references to work linked to the travelling, and Mr Langton was engaged in hedge-laying, fruit-picking and work at festivals, More details are available from 2003, and a pattern emerges of travelling from the appeal site to hold craft workshops and undertake other work at festivals in the South-West of England, with casual work, including labouring and farm work in 2003 and 2004. The festival season extends from May to September, and, with his partner, he is away for at least one week in each month of this period. 8 Ms McGill did not give evidence to the inquiry, but I heard that she had spent 3-4 years up to 2000 travelling in this country and abroad. She supported herself during this earlier period of travelling by such activities as busking and jewellery making. 9 In addition to donations at craft workshops and monies earned at the festivals, the appellants also receive income in the form of family tax credit and undertake casual work from Meerhay during the winter months. However, whilst they do not depend solely on the money which they gain when travelling, it contributes to their income and I am in no doubt that there is an economic purpose to their travelling. 10. The appellants do not travel in a group, although Mr Langton has done in the past. Whilst Neill LJ in R v South Hams DC refers to living and travelling together in cohesive groups being a feature of nomadic peoples, Leggatt LJ, in the same judgement, makes the point that the term ‘gypsies’ is not expressly confined to those who travel in groups. In my experience, it is not uncommon for gypsies and travellers to find their own sites and travel out from them as individual families. When the appellants do this, they use the smaller touring caravan and leave the larger one at The Wintergreen Barn. During these periods, the caravan which leaves the site serves as their home, and I do not find the appellants’ use of caravans at odds with a nomadic habit of life. 11 I am satisfied that travelling undertaken by the appellants in recent years has been associated with their livelihood, and, although they are based at Meerhay for the greater part of the year, I do not regard the extent of travelling currently being undertaken during the festival season as so small as to prevent them coming within the definition in the Circular. In this regard, I note that the Circular refers to changes in traditional patterns of work and it also explains that the gypsy and traveller community has generally become more settled. 12. In assessing whether a nomadic habit of life has been acquired, a key factor is the extent of time over which travelling for economic purposes has taken place The evidence before me indicates that Mr Langton has followed this lifestyle for almost ten years, and I have no reason to doubt his intention to continue with this pattern of living. Whilst Ms McGill has not travelled for as long a period of time, she is the partner of Mr Langton and from what I have heard and read the couple share the same lifestyle. I have reached the view that their travelling linked to their livelihood is sufficiently well-estab1ished to demonstrate that they have acquired a nomadic habit of life. Accordingly I conclude that they are travellers for the purposes of planning policy.”
“Other Considerations 23. The Dorset Traveller Needs Assessment (DTNA) was published in March of this year. The district assessment for West Dorset identifies a demand for 80-84 pitches during the period 2006-2011. Most unauthorised caravans are those of new travellers, and three or four sites for this group are proposed in the rural part of the District. First detailed proposals, based on the DTNA, have been submitted to the South-West Regional Assembly, and have been taken into account in a partial review concerning pitch provision for gypsies and travellers, which forms part of the preparation of the emerging Regional Spatial Strategy (RSS) for the South-West. Policy GT1 of the draft revision to the RSS seeks the identification of sites which would provide for about 1,500 additional pitches in the region from 2006-2011. The distribution of pitches is set out in the accompanying table, which gives requirements of 44 residential and 36 transit pitches for West Dorset over the five year period. Whilst about 70% of West Dorset is within an AONB, a substantial part of this large rural District is not so designated. Policy CT1 of the emerging RSS expects provision to be made for the identified number of pitches in development plan documents (DPDs), and planning permission has been sought for a temporary period to enable sites to come forward in this way. 24. Other indicators reinforce my view that there is a clear general need for gypsy and traveller accommodation in West Dorset. Figures from the bi-annual count of gypsy caravans show that from July 2005 to January 2007 there were between 18 and 52 caravans on land not owned by gypsies, and these unauthorised encampments represent one aspect of need. The single public site has 14 pitches. The Council explained that turnover is low, and indicated that the two vacancies existing, earlier this year were expected to be filled from the waiting list. 25 The appeal site would provide the security of a settled base. This is of particular importance for a family with young children, and would also facilitate access to health and education services. Since the last appeal, the appellants have made enquiries about possible alternative site (sic), and have registered their interest with two estate agents, but no land has been available. Their efforts, though, appear to have been limited to a restricted area, and there is no evidence of a systematic search. It was argued that conflict would arise from sharing a site with traditional gypsies. Whilst I note that the inspector who determined the 2005 appeal thought it highly unlikely that the appellants would be welcomed on the public site in the District, there is no substantial evidence before me on this matter, and consequently it does not add greatly add to the argument on need. However, the Council does not dispute a current absence of possible alternative sites in the District. In this situation, if the appellants were to leave the site, there is a prospect that they would resort to unauthorised encampments. In addition to the unsatisfactory nature of such circumstances for the appellants, unauthorised encampments may pose environmental problems to the landowners and the wider community. 26. There is a clear general need for gypsy and traveller accommodation in West Dorset, which will be addressed in a forthcoming DPD. In addition, the appellants have a personal need for a settled base, and there is no evidence of available alternative accommodation at the present time. I conclude that other considerations support the appeal proposal, and I consider whether this support outweighs the harm relating to the second issue in my overall conclusions below.”
“Conclusions 28. I have found that the appellants are travellers for the purposes of planning policy and that the proposal would represent a sustainable form of gypsy/ traveller site development. There is support for the proposal from factors relating to the general need for gypsy and traveller accommodation and the appellants’ personal need for a base, and Circular 01/2006 makes it clear that consideration should be given to granting a temporary permission where there is no alternative available accommodation but a reasonable expectation exists that sites are likely to come forward through a site allocations DPD. 29. The continued presence of the traveller site at The Wintergreen Barn, albeit for a limited period, would, however, cause substantial localised harm to this part of the Dorset AONB, and my concern in this regard is reinforced by its ready visibility from two public rights of way. The AONB is a nationally recognised designation whose primary purpose is to conserve and enhance natural beauty, and policies in the Structure and Local Plans make clear the importance of safeguarding its landscape. Although localised, the harm to the AONB in this case is significant, and I conclude that it would not be outweighed by the considerations which support the proposal, together with my findings on sustainability. 30. In considering the appeal proposal I have taken into account the human rights of the appellants and their family. An enforcement notice requiring the residential use to cease is effective, and, if the appeal is dismissed, it is likely that the Council would seek to secure the family’s removal from the site. The loss of their home would represent an interference with their rights underArticle 8 of the European Convention on Human Rights . For the reasons given above, I consider that the harm to the AONB resulting from the continued residential occupation of the appeal site would be significant. Taking into account all relevant factors, I am satisfied that the legitimate aim of conserving the natural beauty of the AONB can only be adequately safeguarded by dismissal of the appeal. The protection of the public interest cannot be achieved by means which are less interfering with the appellants’ rights. Dismissal of the appeal is necessary and proportionate, and hence would not result in a violation of their rights under Article 8. 31. None of the suggested conditions would overcome my objection to the appeal proposal. For the reasons given above, and having regard to all other matters raised, I conclude that the appeal should be dismissed.”
“70. Determination of applications: general considerations. (1) Where an application is made to a local planning authority for planning permission— subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or they may refuse planning permission. (2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.” (1) Where an application is made to a local planning authority for planning permission— subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or they may refuse planning permission. (2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.”
"18 . The applicant Samaroo was convicted of serious drug offences and made subject to a deportation order. He challenged the order on the ground that it would involve an interference with the right to family life underArticle 8(1) of the Convention and that such interference was not justified under Article 8(2). Dyson LJ referred to the doctrine of proportionality, as explained by Lord Steyn in R v Secretary of State for the Home Department ex parte Daly[2001] 2 AC 532 , (Daly involved an examination of the privileged correspondence of a prisoner.) Both Samaroo and Daly involved a direct issue between state powers and individual rights. In Samaroo, Dyson LJ stated, at paragraph 19, that "in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights ? … The essential purpose of this stage of the enquiry is to see whether the legitimate aim can be achieved by means that do not interfere, or interfere so much, with a person's right under the Convention". 19 At paragraph 20, Dyson LJ stated: "
"I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention Right, the task for the decision maker, when deciding whether to interfere with the Right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention Rights on the other". 49. In Lough nearby residents opposed a new development at Bankside near the south bank of the Thames in London, and claimed in objections at a public inquiry that it would interfere with their residential amenities, which they contended would amount to an interference with their rights under Article 8. They argued that the Inspector had failed to consider whether the interference with their Article 8 rights was necessary and proportionate. At paragraph 23 Pill LJ addressed the scope and relevance of Article 8 in the context in which planning issues fall "
"Domestic courts must themselves form a judgment as to whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment)…" 47. I find no breach of Article 8(1). Resort to Article 8(2) is not in my judgment necessary to uphold the decision, for the reasons I have given, but, if I am wrong about that, it provides, on the Inspector's findings, justification for the permitted development. I refer to the findings at paragraph 56 of the Inspector's decision together with an acknowledgement of the right of a landowner to make use of his land, as a factor to be considered. 48. Recognition must be given to the fact that Article 8 and Article 1 of the First Protocol are part of the law of England and Wales. That being so, Article 8 should in my view normally be considered as an integral part of the decision maker's approach to material considerations and not, as happened in this case, in effect as a footnote. The different approaches will often, as in my judgment in the present case, produce the same answer but if true integration is to be achieved, the provisions of the Convention should inform the decision maker's approach to the entire issue. There will be cases where the jurisprudence under Article 8, and the standards it sets, will be an important factor in considering the legality of a planning decision or process. Since the exercise conducted by the Inspector, and his conclusion, were comfortably within the margin of appreciation provided by Article 8 in circumstances such as the present, however, the decision is not invalidated by the process followed by the Inspector in reaching his conclusion. Moreover, any criticism by the Appellants of the Inspector on this ground would be ill-founded because he dealt with the Appellants' submissions in the order in which they had been made to him. 49. The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in Samaroo, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require, that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has "an excessive or disproportionate effect on the interests of affected persons" (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that "it is important to emphasise that the striking of a fair balance lies at the heart of proportionality". 50. I am entirely unpersuaded that the absence of the word "proportionality" in the decision letter renders the decision unsatisfactory or liable to be quashed. I acknowledge that the word proportionality is present in the post-Samaroo decisions and the judgments of Sullivan J in Egan and Elias J in Gosbee but I do not read the conclusion reached by either judge as depending on the presence of that word or on the existence of a new concept or approach in planning law. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessary in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in Samaroo does not have the effect of imposing on planning procedures the straight-jacket advocated by Mr Clayton. There was no flaw in the approach of the Inspector in the present case. 51. There remains the discrete question on the Inspector's finding "that matters of property valuation" do not amount to material planning considerations, and its bearing on Convention rights. I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent but, in his reply, Mr Clayton, as I understand it, sought to create diminution of value as a separate and distinct breach of Article 8 and Article 1 of First Protocol. Having regard to the background and purpose of each Article, I do not accept that submission. A loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions. Diminution of value in itself is not a loss contemplated by the Articles in this context. 52. I do not underestimate the importance to landowners of a loss of value caused by neighbouring developments but it does not in my view constitute a separate or independent basis for alleging a breach of the Convention rights involved. The weighing of interests should not be converted into an exercise in financial accounting to determine the loss to the respective landowners and to the community. 53. I would uphold the conclusion and reasoning of the judge and dismiss the appeal." 51. At paragraph 55 Keene LJ said this : "
“Development Plan Documents (DPDs) 30. The number of pitches set out in the RSS must be translated into specific site allocations in one of the local planning authority’s DPDs that form part of the LDF. 31. The core strategy should set out criteria for the location of gypsy and traveller sites which will be used to guide the allocation of sites in the relevant DPD. These criteria will also be used to meet unexpected demand. 32. These criteria based policies must be fair, reasonable, realistic and effective in delivering sites. The adequacy of any criteria will be subject to greater scrutiny under changes to the new planning system introduced by the Planning Act (2004). Planning policies that rule out, or place undue constraints on the development of gypsy and traveller sites should not be included in RSSs or DPDs. The Government has powers to intervene in the plan-making process where it considers that the constraints being proposed by local authorities are too great or have been inadequately justified. This will include where a local planning authority does not adequately address gypsy and traveller site provision in its area. 33. Local authorities must allocate sufficient sites for gypsies and travellers, in terms of the number of pitches required by the RSS, in site allocations DPDs. 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. 34. Identifying and allocating specific plots of land is a more difficult process than using a solely criteria based approach. However it ensures some certainty for local people and gypsies and travellers when planning applications are determined by local planning authorities, or appeals are considered by the Secretary of State. 35. There are a number of ways in which local authorities can identify specific sites and make land available. a) Local authorities have discretion to dispose of land for less than best consideration where it will help to secure the promotion or improvement of the economic, social or environmental well-being of the area, as set out in ODPM Circular 06/03. b) Authorities should also consider making full use of the registers of unused and under-used land owned by public bodies as an aid to identifying suitable locations. Vacant land or under-used local authority land may be appropriate. c) Authorities should also consider whether it might be appropriate to exercise their compulsory purchase powers to acquire an appropriate site. d) Cooperation between neighbouring authorities, possibly involving joint DPDs, can provide more flexibility in identifying sites. Such cooperation is particularly important where an authority has strict planning constraints across its area.” a) Local authorities have discretion to dispose of land for less than best consideration where it will help to secure the promotion or improvement of the economic, social or environmental well-being of the area, as set out in ODPM Circular 06/03. b) Authorities should also consider making full use of the registers of unused and under-used land owned by public bodies as an aid to identifying suitable locations. Vacant land or under-used local authority land may be appropriate. c) Authorities should also consider whether it might be appropriate to exercise their compulsory purchase powers to acquire an appropriate site. d) Cooperation between neighbouring authorities, possibly involving joint DPDs, can provide more flexibility in identifying sites. Such cooperation is particularly important where an authority has strict planning constraints across its area.”
“52. In areas with nationally recognised designations (Sites of Special Scientific Interest, National Nature Reserves, National Parks, Areas of Outstanding Natural Beauty, Heritage Coasts, Scheduled Monuments, Conservation Areas, Registered Historic Battlefields and Registered Parks and Gardens), as with any other form of development, planning permission for gypsy and traveller sites should only be granted where it can be demonstrated that the objectives of the designation will not be compromised by the development.”
“ 8.1 (E): As permission is sought for a temporary use significant weight should be attached to this unmet need” (i.e. for more sites in the County and in West Dorset, especially for New Travellers) in accordance with C(ircular) 1/2006” “8.3 Permission is sought on a temporary basis for a period of 3 years… This would give the appellants a settled site for a short period of time while this couple are caring for their young family………………………………It would also ensure that the appellant’s accommodation needs are taken into account when are arrangements are made to address the need identified in the GTAA. The harm to the AONB is a relevant factor but this can to a certain degree be controlled by conditions……………. A period of 3 years is justified having regard to the absence of alternative provision, the high level of need identified in the Dorset GTAA for further sites especially for New Travellers, the likelihood that this need will be met as part of the DPD process, and the likely timescale for adoption of the DPD having regard to guidance issued by the South West Regional Assembly. A temporary planning permission would, in my opinion, be a proportionate approach in the circumstances and one that accords with the most up-to-date policy guidance in C(ircular) 1/2006.” “8.9 It is considered that the concerns of the Council could be addressed by planning conditions…….and offer a temporary consent until such time as this authority has had the chance to look for an identify an alternative site. It is argued that good justification exists to grant permission on a temporary basis in accordance with C(ircular) 1/2006 given the current lack of sites and good expectation that sites will have to be found to meet the need that has now been identified.”