Wingrove & Anor v Secretary of State for Communities and Local Government & Anor [2009] EWHC 1476 (Admin)

[2009] EWHC 1476 (Admin)Case No CO/2425/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 7 May 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OUSELEY
Between
JULIE WINGROVEAppellantCOLIN BROWNAppellantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTRespondentMENDIP DISTRICT COUNCILRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Marc Willers (instructed by Davis Gore Lomax) appeared for AppellantsMr Hereward Philpott (instructed by Treasury Solicitor) appeared for First Respondent for The Second Respondent was not represented, did not attend
J U D G M E N T
[1]MR JUSTICE OUSELEY: Mrs Wingrove and Mr Brown live together in a caravan on a site in the countryside in the area of Mendip District Council. The district council served on them an enforcement notice under the Town and Country Planning Act 1990 alleging a change of use of the land from agriculture to a mixed use, agriculture and residential use. The residential use was the siting and occupation of a mobile home. The notice required the residential occupation of the land to cease and the removal of a caravan.[2]The first appellant's family had lived on the land since either late 2007 or early 2008. Although based on a misunderstanding of the grounds, it was contended that the material change of use had not occurred but in reality it had and was not immune from enforcement.[3]The appeal against the enforcement notice was considered at an inquiry in January 2009. The main issue at the inquiry was whether planning permission should be granted for the use. The inspector concluded that planning permission should not be granted - although extending time by three months so that in total there was nine months for the removal of the mobile home - he otherwise dismissed the appeal.[4]The appellants before him now apply to this court for permission to appeal against that decision. With the consent of the Secretary of State, the matter has proceeded as a rolled-up hearing, including both the permission application and the substantive hearing. The district council is not represented.[5]MR PHILPOTT: Mr Lord, they do not intend or wish to be represented.[6]MR JUSTICE OUSELEY: They are content that matters should proceed in this way as has been ascertained by the Treasury Solicitor.[7]The question whether planning permission should be granted involved, first, consideration by the inspector as to whether the appellants or any one of them were gypsies within the definition of "gypsies and travellers" in Circular 1/2006 Planning for Gypsy and Traveller Caravan Sites. Paragraph 15 of the Circular states:
"For the purposes of this Circular 'gypsies and travellers' means - Persons of nomadic habit of life whatever their race or origin, incluidng 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, but excluding members of an organised group of travelling show people or circus people travelling together as such."
[8]The inspector appreciated the appellants' "feeling of identity with the gypsy and traveller community and their present wish for a lifestyle commensurate with that feeling of identity", but concluded that they fell outside the scope of that definition. He found that Mr Brown, who agreed that he was not an ethnic gypsy, had lived in a dwelling until he met Mrs Wingrove in about 1986. Mrs Wingrove had lived in a house from 1962 until meeting Mr Brown in 1986. It appears that while she was a child and teenager until she was about 21, she - coming from a gypsy family - had gone to fairs, but mainly for social gathering purposes, frequently and fairly regularly, and would sell things from door to door. From 1986 to 1989 the couple had inhabited a caravan but this was not related to a nomadic habit of life. From 1990 to 2007 they had lived in a house or bungalow. During that time they had travelled to work each day for the purposes of their mobile catering business which they had given up in September 2008. They had come to the place in question at about the end of 2007.[9]The inspector concluded:
" ..... the evidence of Mr Brown and Mrs Wingrove showed no clear indications of a nomadic habit of life, or which might have given rise to the wish to settle, temporarily or permanently, from this lifestyle. The appellants are now striving for a contented country life in a caravan in the appeal site, and to pursue [various minor agricultural activities]. That however is an aspiration shared by many people but ..... it has to be judged in relation to the appropriate planning policies."
[10]Having concluded that the appellants fell outside the scope of the definition, the inspector found it unnecessary to consider how the application of the policies in Circular 1/2006 would have worked out had they been gypsies and travellers for the purposes of that Circular. He then applied ordinary planning policies to them and found that it breached the relevant planning policies. He considered whether, as it was their home, a temporary planning permission should be granted. He also considered whether the removal of their home from the land would involve a disproportionate breach of Article 8 of the European Convention of Human Rights (ECHR). He concluded that no temporary permission should be granted and that removal of the caravan would not breach Article 8 of the ECHR.[11]Mr Willers, for the claimants, does not now take issue with the conclusion of the inspector that the claimants did not fall within the scope of Circular 1/2006. In my judgment, he is entirely right to accept that no error of law was made by the inspector. Similarly no issue now arises in relation to the application of the Circular to inhibit development in the countryside.[12]Mr Willers however developed an argument, not for the first time, concerning the relationship between the definition of gypsies and travellers in Circular 1/2006 and another definition of gypsies and travellers to be found working its way through the planning system through the Housing Act 2004, regulations made thereunder and gypsy/traveller need assessments which are also referred to in Circular 1/2006. It is Mr Willers' submission that the inspector ought to have - but failed - to consider that other definition and its effect. Had he considered the definition, he might have concluded that at least Mrs Wingrove was a gypsy within that definition and considered her needs differently. This is also related to the other ground which he raises which is that the inspector failed to consider the needs for those who fell within the Housing Act and Gypsy and Traveller Accommodation Assessments process but outside the scope of the definition in Circular 1/2006.[13]Mr Willers also submitted that the inspector had failed to consider all aspects of Mrs Wingrove's Article 8 ECHR claim because he only considered interference with her home and not the interference with the wider aspects of her gypsy identity, namely a desire to live in a caravan. If the inspector was constrained not to treat her as a gypsy by virtue of the definition in Circular 1/2006, Circular 1/2006 breached Article 8 and the decision in relation to removal of the caravan also breached her Article 8 rights.[14]It is necessary now to refer to the way in which the definition of gypsies and travellers for various planning purposes has evolved. In Wrexham County Borough Council v National Assembly for Wales and Berry and Berry [2003] EWCA Civ 835, the Court of Appeal considered the definition of gypsies in Circular WO 2/94] Gypsy Sites and Planning which provided that - "'gypsies' means persons of nomadic habit of life, whatever their race or origin" but excluding travelling showmen. The gypsies in that case had been of a nomadic way of life but old age or ill health had caused them to give up the nomadic way of life and become settled. The question was whether they had ceased to be gypsies.[15]The judge at first instance, Mr Justice Sullivan, construed the Circular as including as gypsies those who had previously had a nomadic way of life but who had had to abandon it through force of circumstances.[16]The Court of Appeal held that notwithstanding that Mr Justice Sullivan had sought to give the Circular what he saw as a humane, common sense and ECHR-compatible interpretation, it was not for the court to interpret the Circular in a way that made it mean what it did not say, and it was not necessary to do so for Article 8 purposes. Article 8 had to be dealt with in other ways through the planning process than by interpreting the Circular in that particular way.[17]The upshot of the case - which was that those who abandoned a nomadic way of life through force of circumstances and became settled had ceased to be gypsies - was altered by the government, changing the definition of gypsies to the one which I have set out earlier from paragraph 15 of Circular 1/2006.[18]Circular 1/2006 was part of a report of the way the planning system dealt with gypsies and travellers. Circular 1/2006 not merely enlarged the definition but it introduced policies which were designed to cater for the needs of those who fell within that definition. I note for these purposes that paragraph 12 states that the main intentions of the Circular include creating sustainable communities where gypsies and travellers have fair access to public accommodation, to recognise, protect and facilitate the traditional travelling way of life of gypsies and travellers and to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to.[19]One of the ways in which those aims were to be achieved was by increasing significantly the number of permitted gypsy and traveller sites.[20]The Development Plan Process was described. It started with an assessment of the accommodation needs of gypsies and travellers (the GTAA) for each local authority area. This assessment of need would be a key component in the overall assessment of need which informed the housing policies in the Regional Spatial Strategy (the RSS) at paragraph 22. The RSS would specify pitch numbers which each local planning authority had to provide, having checked and modified - from a regional perspective - the figures which each local authority had provided to it. The preparation of development plan documents by the local councils would then lead to the setting of criteria for the location of sites and then site-specific allocations in one of the development plan documents.[21]The definition of "gypsy and traveller" to be used in the GTAA process - although the GTAA process is referred to and is an important part of Circular 1/2006 - is not the same as the definition of "gypsies and travellers" which paragraph 15 sets out for the purposes of the Circular. The GTAA is an aspect, as paragraph 22 makes clear, of a general provision in relation to accommodation to be found in Section 225 of the Housing Act 2004.[22]Section 225 (1) imposes a duty on local housing authorities to the effect that, when undertaking a review of housing needs in their district, they must carry out an assessment of the "accommodation needs of gypsies and travellers residing in or resorting to their district". By Section 225 (5), the definition of "gypsies and travellers" in that section is provided by regulations. The relevant regulations are the Housing (Assessment of Accommodation Needs) (Meaning of Gypsies and Travellers) (England) Regulations 2006, SI/3190. By Regulation 2, for the purposes of Section 225 of the 2004 Act, "gypsies and travellers" mean - "(a) persons with a cultural tradition of nomads or of living in a caravan; and (b) all other persons of the nomadic habit of life whatever their race or origin ..... " and it continues, in effect, to include and exclude those who are included and excluded in the definition in paragraph 15 of the Circular.[23]Accordingly for the purposes of Housing Act obligations, there is a broader definition of "gypsies and travellers" because, in addition to persons of a nomadic habit of life regardless of race or origin, those with a cultural tradition of nomads or a cultural tradition of living in a caravan are also included. That is therefore the definition which is used in the GTAA which feeds through the RSS and which underpins the allocation of sites in the development plan documents. As I shall come to illustrate, that does not mean that everybody who would wish to live in a caravan or even everybody with a cultural tradition of nomadism or living in a caravan has a pitch allocated or counts for the purposes of pitch allocation. But the Circular itself recognises that the definition of "gypsies" for the purposes of the GTAA is different from the definition used in the Circular. Paragraph 21 states:
"21 ..... The need identified by the GTAA could include gypsies and travellers who do not fall within the definition at paragraph 14 [it means 15]. This need should still inform the amount of land to be identified by the planning system. This is necessary to ensure local authorities have flexibility to allocate adequate land for their own sites to provide for those they have assessed as in need of caravan accommodation. Further guidance on this can be found in the draft guidance document Gypsy and Traveller Accommodation Assessments."
[24]The Circular also makes provision for what is to happen to gypsies who fall within the scope of the Circular definition at a time when the development planning process, to which the Circular refers, has not been concluded. Paragraphs 45 and 46 state that considerable weight should be given to granting a temporary planning permission in circumstances where the evidence suggests that there is a substantial unmet need for authorised sites.[25]The draft guidance to which the Circular referred was superseded by the final version in October 2007. The GTAA guidance states that the aim of the assessment was to provide data identifying gypsy and traveller accommodation needs and aspirations in the same way as the rest of the population. This would enable gypsy and traveller accommodation to be quantified in terms of site accommodation and private sites, socially rented sites, transit sites and private or subsidised bricks and mortar housing.[26]It referred further to the intention behind the broader definition of gypsies and travellers' needs in the GTAA. At paragraph 25 it states:
"The intention of this definition is to cover all those whose distinctive ethnicity, cultural background and/or lifestyle may give rise to specific accommodation needs, now or in the future, which need to be assessed and planned for. 26 A broad definition is necessary to achieve a full understanding of the accommodation needs of this community, and to put appropriate strategies in place to meet it. For example, Gypsies and Travellers, and their children and other relatives, in bricks and mortar housing may form part of the source from which future site need and aspiration may arise, and it will be essential to understand this. On the other hand assessing the needs of housed Gypsies and Travellers will also help identify the ways in which housing may be made to work better for them, and made more attractive to Gypsies and Travellers in general. This could reduce the numbers who leave or wish to leave housing for sites, and encourage some of those currently on unauthorised sites to move into, or back into, housing."
[27]It is also apparent from paragraph 28 that the GTAA definition had to be one which would catch everybody, because Section 8 of the Housing Act 1985 required the needs of everybody to be assessed. It pointed out in paragraph 29 that the inclusion of someone within the survey as a gypsy or traveller within the broader definition did not of itself imply that that person should live on a caravan site or have gypsy status for planning purposes. Nor did it carry any presumption about how required needs should be met. It pointed out that gypsy and traveller accommodation needs might be met in a variety of ways, including housing of different forms of tenure as well as site accommodation of different types. Paragraph 102 stated:
"The [needs assessment] would also inform the wider housing work of the local authority and its partners, by providing a clearer understanding of the accommodation issues faced by Gypsies and Travellers ..... "
[28]The reason for the distinction between the two definitions was also referred to in the Explanatory Memorandum to the 2006 Regulations. Paragraph 7.6 of this memorandum stated that the government had considered using the planning definition for the purposes of the housing legislation. But that might have excluded certain gypsies and travellers who lived in houses but might have ceased to travel for want of authorised sites. Their needs were not being assessed. Housing need also might not be confined to those in need of caravan sites but might uncover needs for suitable types of housing and support services. Paragraph 7.7 continued that, conversely, it was inappropriate for planning purposes to adopt the wider housing definition; that would effectively allocate land for a particular ethnic group which might discriminate against members of other ethnic groups who would not benefit in the same way. The planning definition was born out of a way of life and not ethnic identity, and thus was based on nomadism.[29]It is evident from those extracts that the fundamental reason for the distinction between the two definitions - although both had a part to play in the planning process - is that the planning definition deals with the development control side of planning and the designation of land for specific land uses, whereas the housing definition is designed to make sure that all housing needs (and not just the question of whether needs should be met in bricks and mortar or on sites) would be considered, and that housing needs that might be disguised by the present form of accommodation occupied by an individual would not be ignored. The housing need definition would of course make its way through the development plan process, but its impact on site allocation and on who might occupy any particular site is clearly a different matter.[30]The Circular makes it clear that its focus in development control and site designation is the facilitation of a nomadic way of life or the way of life of those who were nomads and enjoyed a nomadic way of life but who, by force of circumstance, as identified, have ceased to be able to undertake it.[31]Mr Willers submitted that although Mr Brown did not fall within the broader definition of "gypsy and traveller" within the housing regulations, Mrs Wingrove could fall within the scope of sub-paragraph (a) although not within the Circular definition of "a gypsy". The inspector made no finding about that. He was not asked to consider that point, and the possible relevance of that point to the argument that Mr Willers has advanced here was not pointed out to him either.[32]For present purposes I need say no more than this. Without trespassing on the evaluative process which it might be for an inspector to undertake, I have the greatest difficulty in seeing how somebody who, for two-thirds of her life, 40 plus years, has lived within bricks and mortar could be said to have a cultural tradition of nomadism or a cultural tradition of living in a caravan. There was no evidence either - indeed the evidence was the other way - that Mrs Wingrove intended at some point to abandon the settled way of life and revert to the nomadic style of her youth. Nor was there any suggestion that she had a cultural aversion to bricks and mortar. It is obvious, as the inspector found, and perfectly understandably, that she wanted to stay with the lifestyle that she had recently begun.[33]Mr Willers also submitted that if Mrs Wingrove came within sub-paragraph (a) of the definition in the housing regulations, the inspector ought to have considered her position against a shortfall in provision for those such as her, or ought to have considered a temporary planning permission on the basis of her position. However as Mr Philpott, for the Secretary of State, points out, such figures as may have been before him in relation to a shortfall of sites for those who fell within the definition of gypsies in Circular 1/2006 would not have been of any relevance to the position of Mrs Wingrove who fell outside it.[34]There is no suggestion or evidence before this court, and nothing in the inspector's assessment, to suggest that there was any assessment of the figures, so far as those who might fall within sub-paragraph (a) are concerned, in terms of unmet need, whether bricks and mortar of one or other form, or of sites of one or other form of provision. There was no evidence of where the assessment had got to in the GTAA and development plan.[35]No argument along the lines which Mr Willers has addressed was put before the inspector at all. No material was provided to him on which he could reach a decision on the argument even though not addressed to him. In my judgment, it cannot be said that the inspector's failure to consider this argument involved any error of law on his part or a failure to consider a material consideration. This argument is not an argument which, regardless of what the parties might put before him, it could be said that the inspector was obliged to consider as a material consideration. He did consider whether a temporary permission should be granted, and he had no material upon which he could suppose that there was any extra policy impetus behind this grant than that which Mrs Wingrove deployed before him.[36]There is some scope perhaps for an inter-action between Circular 1/2006 and the GTAA which could give rise to some difficulties. The prime difference between them is that one is concerned with overall housing need and the other is concerned with development control decisions to facilitate the nomadic way of life. However it is difficult to see that quite the stark distinction between development control and development planning provision can be drawn as suggested - important though that distinction is. There is inevitably a connection between how a development plan proceeds and the weight to be given to development control decisions for uses for which the development plan is making provision.[37]I accept what Mr Philpott says entirely that no conclusion can be drawn from the fact that someone may fall within sub-paragraph (a) of Regulation 2 of the Housing Regulations 2006, that that person should count towards housing or alternatively to caravan site need or, more importantly, that a person within (a) necessarily is one who makes up the totals for the provision of caravan sites.[38]I simply sound a warning against drawing very hard and fast distinctions between matters which, again, will bear some relationship to each other. But it is plain that that was not an obligatory material consideration to which the inspector had to attend regardless of the argument or material before him.[39]In general terms, I agree with the approach of Mr Ian Dove QC (sitting as a Deputy High Court judge) who heard similar arguments in R (On application of McCann) v Secretary of State for Communities and Local Government and Basildon District Council [2009] EWHC 197 Admin. I would however express a reservation about the completeness of the exposition of the law in paragraph 14. It is plain that the essential need to which the GTAA is directed is accommodation, including housing and caravan sites. The definition includes those who may wish to leave the nomadic way of life and settle in bricks and mortar and is intended to make sure that a variety of needs, including those of support, are also considered.[40]I would also wish to emphasise the importance in the planning system, important in the Circular, of facilitating actual nomadic lifestyle, because one of the chief concerns was the shortfall in authorised sites for those who wished to pursue a nomadic lifestyle and who were perhaps forced to live in unauthorised sites or unsuitable bricks and mortar.[41]I have considerable reservations about the last sentence of paragraph 15. The primary purpose of the regulations is to make sure that nobody's accommodation needs are ignored. The regulations to my mind plainly do require consideration to be given through the development plan system of fair provision for those who have abandoned a nomadic lifestyle for reasons other than education, health or old age, but who wish to live in a caravan. That is because the definition in sub-paragraph (a) includes those who have a cultural tradition of living in a caravan as distinct from those who have a cultural tradition of nomadism. It is difficult now to think of those with a traditional culture of nomadism other than those who live in a caravan.[42]I turn to Mr Willers' submissions that the definition in the Circular for its application to Mrs Wingrove in this case involved a breach of her Article 8 rights. It is evident that the only part of her Article 8 rights which the inspector may not have considered - because she fell outside the scope of the definition of "a gypsy" for the purposes of the Circular - is that aspect of being a gypsy (of which he was well aware) which is referred to in paragraph 73 of the decision in Chapman v United Kingdom (2001) 33 EHRR 399. Paragraph 73 points out that - " ..... occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle ..... even though ..... many ..... no longer live a wholly nomadic existence and ..... settle for long periods ..... to facilitate, for example ..... education ..... " The court continued:
"Measures which affect the applicant's stationing of her caravans have therefore a wider impact than on the right of respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition."
It is that latter aspect which it might be said had not been taken into account in the consideration of Article 8 rights.[43]The provisions of the Circular cannot be said, of themselves, to involve a breach of Article 8. There are two reasons in particular for this. The question of how the balance is struck between the needs and rights of an individual and the broader public interest of the protection of the environment is very much a matter for the national authorities who are afforded a wide margin of appreciation in this respect under Article 8 (2). The decision in McCann itself, in my judgment, recognised that a yet narrower definition of gypsy in the Circular did not of itself give rise to a breach of Article 8. I cannot see that a broader definition now could.[44]More importantly, the way in which a court should assess whether there has been a breach of Article 8 is by reference to the application of the policy to the facts of an instant case. It is my judgment that there was no breach of Article 8 here. The considerations that are germane to the nomadic lifestyle are adequately considered through the application - through development control - of the definition in Circular 1/2006 with its focus on the nomadic lifestyle and its elaborations which the decisions of courts over the years have brought.[45]So far as the maintenance of her identity as a gypsy in relation to her lifestyle is concerned, the inspector considered her past dwelling habits, that is to say for 40 years and more she had not lived in a caravan. There was no evidence of aversion to bricks and mortar. She wanted a contented country life. The fact that she may be an ethnic gypsy does not mean that she always seeks to live in a caravan. In my judgment, there was no breach of Article 8 in the way in which the inspector considered the impact that an enforcement notice would have.[46]The arguments that I have listened to have ranged very wide in relation to the arguments that the inspector had before him. In relation to the arguments that the inspector had before him, there is no arguable case that he made an error of law.[47]For those reasons I refuse leave to appeal.[48]If the issue Mr Willers has raised before me had been argued before the inspector the inspector would have had to reach conclusions that may or may not have been the same as the inspector in McCann. Those are not matters now on which the inspector can be held to have erred in law, in failing to deal with them in this case.[49]For those reasons this application is dismissed.[50]MR PHILPOTT: I am grateful. There is, you may anticipate, an application for my clients' costs. The two matters I should mention are, first of all, there is a statement of costs for purposes of summary assessment. Secondly, I understand that both appellants are in receipt of legal aid support. We have a copy of the documentation associated with that. There is a question of, first, the principle of getting costs which I do not believe is controversial; secondly, quantum; and, thirdly, the form of the order to encapsulate the legal status of the appellants.

MR JUSTICE OUSELEY: Do you have a copy?

[52]MR PHILPOTT: I have a copy. You will see on the second page that the total is £6,914. I wonder whether the best way to deal with the total - unless your Lordship has queries about how it is made up - is to see if my friend has queries about it.[53]MR WILLERS: I do have one query. It has nothing to do with my friend's fee. There is on the second page at paragraph (b) a reference to work done on documents, 18.1 hours at £160 an hour. The documents are very, very brief; they do not take up one-third of a ring binder let alone a lever arch file. I do not understand how 18 hours can be spent on it.[54]MR PHILPOTT: If I can explain what that comprises and why, in my view, it is perfectly reasonable. The main work comprised in that is the work that is involved in researching and preparing written minute of advice. Your Lordship will have come across that in other cases. In this case although the papers are slim, slim papers often deal not with the research.[55]In this case my instructing solicitors had to go back through the various documents, guidance, memoranda and so on and investigate all of that dealing with the human rights implications in order to make a properly informed assessment and write a minute of advice. That work, in total, comprised 18 hours. If you look to the illustration, whether reasonable or not, of my fees, you will see that there is minute of advice for documents that covers all the work up to and including my - - to the point where I have produced a written document setting out my submissions on it. That is done on the basis of an hourly rate, at Treasury rate. It is 13½ hours. The time that I spent was considerably shorter than it would otherwise have been because my instructing solicitor did a lot of legwork, including digging out the memorandum and so on. I spent 13½ hours; 18 hours was spent by my solicitor doing a similar task, but saved me time. I did not have to repeat that exercise. It is a perfectly reasonable amount of time on a case that - albeit on slim papers - does throw up some matters.[56]MR WILLERS: I do not have an issue.[57]MR JUSTICE OUSELEY: There will be an order for the payment by the appellants of the Secretary of State's costs. I, too, was a little taken aback by the hourly figure. Mr Willers has questioned it. I think, on balance, the Secretary of State makes out the case for the order to be in the sum of £6,914, not to be enforced without leave of the court. Detailed assessment of legal aid costs.

Cited in 1 later judgment