Barnsley Metropolitan Borough Council v Secretary of State for Communities and Local Government & Anor [2010] EWHC 206 (Admin)

[2010] EWHC 206 (Admin)Case No CO/10957/2009
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
Venue Leeds Combined Court Centre
The Courthouse,
1, Oxford Row
Venue Leeds LS1 3BGDate 15 February 2010
HIS HONOUR JUDGE ROGER KAYE QC
(Sitting as a High Court Judge)
Between
BARNSLEY METROPOLITAN BOROUGH COUNCILClaimantTHE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantsRICHARD SMITHDefendant
Appearances:Mr Martin Carter for ClaimantMs Sarah-Jane Davies for first DefendantMr Timothy Jones for second DefendantHearing Hearing date: 04 February 2010Hand down Judgment: 15 February 2010
JUDGMENT
[1]This is an appeal by the Barnsley Metropolitan Borough Council (“Barnsley MBC” or “the Borough”) under section 288 Town and Country Planning Act 1990 against the decision of the Secretary of State for Communities and Local Government whereby he allowed the appeal of a Mr Richard Smith under s 78 of that Act against Barnsley MBC’s refusal to grant him planning permission for the development of land adjacent to Burntwood Cottages, Great Houghton, Barnsley (“the Appeal Site”).[2]The development proposed was a change of use to provide 8 static caravan pitches (gypsy and traveller site) for permanent occupation by Mr Smith and his family. Mr Smith’s application was dated 3 November 2008 and the refusal notice was dated 17 December 2008.[3]Mr Smith’s appeal was dealt with by way of a hearing. The inspector appointed by the Secretary of State in connection with Mr Smith’s appeal was a Mr Philip Crookes BSc, Dip TP, MRTPI (“the inspector”). He heard the appeal on 28 July 2009 following which he made site visits accompanied by the parties. His decision was contained in a decision letter dated 17 August 2009 (“the Decision Letter”).[4]It is against that decision that Barnsley MBC appeals. The Borough seeks to quash the inspector’s decision and have the appeal remitted for a fresh hearing.

The Background

[5]In addition to the decision letter I have been helpfully presented with copies of the material that was before the inspector. There is and was little if any relevant dispute of fact. The following is taken from the inspector’s Decision Letter or the material before him.[6]Mr Smith and the members of his immediate and extended family are all Romany Gypsies. At all material times they have occupied and still occupy pitches for their caravans at a privately owned gypsy site at Ings Road, Wombwell (“the Ings Road Site”).[7]This site lies close to the River Dove and is within its flood plain. As the inspector noted in his Decision Letter, the site suffered sudden and severe flooding during a period of heavy rainfall in June 2007 when the river overflowed its banks. Families had to be temporarily re-located then and later in the year and again in 2008 when further flooding occurred. There was a further risk of flooding in January 2009. The inspector noted the flooding in 2007 was “catastrophic” and must have been to a depth of “several feet” and described the flood risk as potentially “life-threatening, particularly should it occur when residents are sleeping.”[8]The June 2007 flooding resulted in the families on the site losing some if not all of their living accommodation and equipment and caused severe damage to the infrastructure and facilities on the Ings Road Site. The site is in a flood risk area and while steps are being taken to establish a telemetry system on the River Dove, no other flood prevention works are likely to be undertaken in the foreseeable future.[9]The inspector further found that the flooding had had a severe impact on Mr Smith’s family. Several of them were elderly and had significant medical problems the latter being adversely affected by the anxiety and fear of future flooding. He noted there were eleven children on the Ings Road Site between the ages of 6 months and 13. The inspector found the family group to be close-knit and reliant on one another for mutual support.[10]These factors led to the desire to find an alternative, safer, site for the family.[11]The Appeal Site was designated Green Belt under the Barnsley Unitary Development Plan adopted in 2000. As such there is a general policy against inappropriate development. Circular 01/2006 Planning for Gypsy and Traveller Caravan Sites issued by the (then) Office of the Deputy Prime Minister (ODPM) emphasised that new traveller and gypsy sites in the Green Belt are normally to be considered inappropriate development. It was and is common ground therefore that very special circumstances would have to be demonstrated by Mr Smith to outweigh the presumption of inappropriate development resulting from the proposed development of the Appeal Site.[12]Barnsley MBC also recognised that housing and planning considerations required the local authority to develop a strategy for gypsies and travellers based on an assessment of their accommodation needs. Some work in this respect had been carried out but the Borough had ultimately succeeded in identifying that there was a significant shortfall of available pitches within the South Yorkshire area measured against need of some 129 pitches and a requirement for a further 78 up to 2011. Within Barnsley alone there was a shortfall of 38 pitches and a projected additional need of a further 10 by 2011. Even allowing for the existence of alternative privately owned sites there was a significant shortfall within the borough area. Recent past planning history was not encouraging with most applications being refused by the Borough but some being allowed on appeal resulting in most cases in permission being granted for a temporary period of 5 years.

The Borough’s Stance at the Inspector’s Hearing

[13]In the Borough’s Rule 6 statement to the inspector (see Rule 6 Town and Country Planning (Hearings Procedure) (England) Rules 2000 (2000 SI No. 1626) as amended) (“the Hearings Rules”) and in its written comments on Mr Smith’s statement, Barnsley MBC sought to uphold the refusal. It did not present any alternative in either statement. Specifically it did not suggest as a fall-back position that a temporary permission might be granted.[14]It did, however, produce a list of suggested conditions to the inspector were the appeal to be allowed. These conditions did include a proposal that permission be limited for a five year period.[15]The reasons given for this proposal (which were set out in the same document) recognised, in a nutshell, that until sufficient sites had been allocated in the Borough’s “forthcoming” Local Development Framework (LDF), a temporary site might have to be permitted. Hence those previous applications where temporary permission had been granted (see the written conditions list and para. 19 of the Decision Letter).[16]This was in accordance with the guidance given in ODPM Circular 01/2006 which also recognised that temporary permission might be justified “where it is expected that the planning circumstances will change in a particular way at the end of the period of temporary permission”. As the Circular continued (paragraph 45): “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 [i.e. at the end of the temporary period] in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission” [my emphasis]. An example as to where such use of temporary permission might be considered was where the local planning authority was preparing its site allocations DPD (development plan document) (see para. 46 of the Circular).[17]The conditions were produced during the hearing at what is generally known as the conditions session. Mr Yarwood, representing Mr Smith, it is accepted, dissented, pointing out that temporary permission was inappropriate given the likely costs connected with the move and in preparing and servicing the Appeal Site and the effect on moving elderly and disabled persons within a relatively short time frame.

The Inspector’s Decision

[18]The inspector, again it is common ground as was proper, at the outset of the hearing identified five main issues bearing in mind the Appeal Site was within the Green Belt which were listed in his Decision Letter and may be summarised as follows:a. Whether the proposed development would be inappropriate;b. The effect of the development on the Green Belt;c. Whether the development would be reasonably well related to services and facilities;d. Whether the harm to the Green Belt by reason of inappropriateness (if found to be such), and any other harm was clearly outweighed by other considerations;e. The risk of pollution.[19]The inspector in his Decision Letter considered these matters in turn.[20]He found and concluded that the proposed development would represent inappropriate development in the Green Belt. He further found the Appeal Site, located in rural surroundings and consisting of about 0.3 hectares, about half of a walled garden once associated with Burntwood Hall, was enclosed and screened from its surroundings by 4m high walls and largely consisted of overgrown land with dilapidated buildings, structures and hard standing from previous uses. He noted it was enclosed and screened from its surroundings and that there were no significant public views into the site. He therefore concluded that any harm to the visual amenities of the Green Belt in that location would be limited. But he also considered that the site was poorly located in terms of shops, services, schools and other facilities and had serious shortcomings in terms of accessibility.[21]The inspector’s views on Barnsley MBC’s reaction to meeting the needs of gypsies and travellers were damning. Significantly for present purposes he noted in paragraphs 19-21 of the Decision Letter that the Borough accepted that there was a significant unmet need for additional sites for gypsies and travellers in both South Yorkshire and Barnsley. He further noted that the “Council accepts that the immediate and significant unmet need has been a factor in a number of appeal decisions in recent years where Inspector’s [sic] have granted temporary planning permissions for sites in the Green Belt” (para. 19). That need, he wrote, would increase should the Ings Road Site prove untenable due to flood risk. He noted (at para. 20) the Borough “intends” to address the need. A public consultation document was not expected before summer of 2010. Adoption of the site specific development plan document (DPD) was not expected before summer 2012. He concluded (paras. 20-21):
“In view of the limited progress to date such a target seems optimistic to me and would be prolonged further before sites could be delivered. … [T]he Council is only in the early stages of preparing a site allocation DPD, and continues to rely on criteria based policy which has become outdated by more recent national guidance.”
[22]He considered Mr Smith’s personal and family circumstances (noted above) and the Ings Road Site (which he had visited together with the parties). He noted the Borough accepted that this site was not ideal. He said this in paragraph 27 of his Decision Letter:
“Although much of the Ings Road site is to some extent screened by vegetation, it has a significant visual presence when viewed across the flat flood plain and from the housing area on the higher land on the other side of the River Dove. I consider it to be a visually intrusive feature in the Green Belt and one which reduces its openness. These impacts are more significant than I have found to be the case in respect of the Green Belt location of the appeal site. The vacation of the site in the medium to long term and the removal of the caravans and associated structures to more suitable locations therefore have potential benefits for the openness and visual amenity of the Green Belt close to Wombwell. No other sites are available to which the appellant family could re-locate and it would therefore seems [sic] to be the case that these benefits are only likely to be obtained through the appeal scheme. However, I appreciate that there can be no guarantee of this since the vacated plots may be occupied by others whose need for accommodation might mean that they take a more measured and tolerant view of the flood risk involved. Nevertheless, the potential benefits to the objectives of Green Belt designation in the Ings Road area are further factors in favour of the appeal scheme.”
[23]The inspector then went on to consider the risk of pollution.[24]He concluded that Mr Smith needed to show very special circumstances to justify the development. He reminded himself that such circumstances can arise from a combination of circumstances. It was ultimately a balancing exercise.[25]He then returned to the unmet national and regional need for gypsy sites. “The situation in Barnsley”, he found (paragraph 34), “is that there is at present a clear and immediate unmet local need for gypsy sites in the Borough.” In paragraph 35 he further found that “The existing local planning policy framework is inadequate to meet existing unmet needs and there is no immediate prospect of the policy framework changing, given that a site specific DPD is not expected to be adopted until 2012 at the earliest. The delivery of sites thereafter will take further time.” The family lived in fear of a recurrence of severe and life threatening flood risk. The Ings Road Site was not envisaged by Barnsley MBC as part of a long term supply of gypsy sites. In the absence of any alternative site, the Appeal Site offered Mr Smith’s family a safer environment. The inspector also noted in paragraph 37, in a confirmation of the views set out in paragraph 27 (above) that the removal of the caravans and structures from 8 pitches on the Ings Road site had “the potential to return at least part of the site to a more appropriate, open and less visually damaging Green Belt use. Whilst such a benefit cannot be guaranteed, given the uncertain future of the site, this consideration can only be a positive factor in favour of the appeal scheme.”[26]Overall he therefore concluded that the appellant had shown very special circumstances and accordingly allowed the appeal. He imposed a number of conditions (designed to deal with pollution, drainage, screening, repair of walls and other matters) but particularly noting that in undertaking the balancing exercise it was the weight he attached to the needs of the individuals involved and their personal circumstances that were “critical” (para. 39), he imposed also conditions (conditions 2 and 3) limiting the occupation of the Appeal Site to Mr Smith and his immediate and extended family currently occupying the Ings Road Site. When they ceased to do so, the permitted use was to cease and the land to be restored.

The Issues on this Appeal

[27]Barnsley MBC have two complaints or grounds of appeal about the inspector’s decision.[28]First that the inspector failed to consider the imposition of a planning condition granting planning permission for a limited period (Ground 1).[29]Second, the inspector erred in noting and taking into account a number of features about the Ings Road Site set out in paragraph 27 of his decision letter (see above), since such features had not been put forward or pursued by Mr Smith either in writing or at the hearing and accordingly the Borough never had the opportunity of addressing the features he noted (Ground 2).

The Legal Framework

[30]There was little, if any dispute as to the relevant law, rather to the application thereof. The relevant framework was agreed as follows.[31]The procedure is to be determined by the inspector: Rule 11(1) of the Hearings Rules.[32]The inspector must identify at the outset, what in his or her opinion are the main issues to be considered at the hearing any matters upon which further explanation is required: Rule 11(4). Nothing in Rule 11(4) prevents a person at the hearing from referring to issues which they consider to be relevant to the appeal but which were not referred to by the inspector: Rule 11(5).[33]The parties must be given a “fair crack of the whip” and must not be deprived of the opportunity to present material by an approach of the inspector which that party did not, and could not have reasonably anticipated: Castleford Homes Ltd v Secretary of State for Environment, Transport and the Regions and Anor [2001] EWHC Admin 77.[34]Where a decision on a planning permission is unlawful and liable to be quashed, relief should only be refused if there is no real prospect of a different decision on reconsideration: Simplex Holdings Ltd v Secretary of State for the Environment [1989)57 P & CR 306.[35]Permission may be given either unconditionally or subject to such conditions as the inspector thinks fit: see ss 70, 72 and 90 Town and Country Planning Act 1990. Where a specific condition is raised by a party and would be a possibility, then the inspector should consider it, but if he does not, then that is not automatically a sufficient irregularity to justify interference with the decision made: see Brightwell v Secretary of State for the Environment (1997) 73 P & CR 418; Ayres v Secretary of State for the Environment [2002] EWHC Admin 295 at para. 43 per Silber J.[36]The inspector’s decision must be in writing and state reasons (see Rule 16(2) of the Hearings Rules). Lord Brown in South Buckinghamshire DC v Porter (No. 2) [2004] 1 WLR 1953 explained what this meant at paragraph 36: specifically, the reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues but they need only refer to the main issues in the dispute, not every material consideration. “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.” The Submissions of Barnsley MBC – Ground 1.[37]Mr Martin Carter, for the Borough, submitted, in substance, that given the Appeal Site was designated Green Belt and the proposed development inappropriate (as was accepted by the inspector), if the proposed development was to be permitted, the inspector should have allowed the development only on the basis of a temporary permission until such time as sufficient sites had been allocated in accordance with the forthcoming LDF for the Borough.[38]Although he referred to the grant of temporary permissions in recent decisions, to Circular 01/2006 (which contained the guidance about considering the imposition of temporary permission in paragraphs 45 and 46 where the local authority was preparing its site allocations DPD), to the fact that the inspector’s comments about the Borough’s site allocation DPD (paras. 19-21 of the Decision Letter, above) must be read as having implied that there was a “reasonable expectation” that sites would be available at the end of a reasonable period in the future, and despite the fact that the Borough had proposed a five year temporary permission which had been commented on by Mr Yarwood, the inspector failed to consider in his Decision Letter whether he should have granted only temporary permission and if not, whether, therefore, in those circumstances the appeal should have been allowed at all.[39]This failure, submitted Mr Carter, amounted to a material consideration being left out of account (the grant of temporary planning permission) and the Borough had thereby been substantially prejudiced.[40]Mr Carter did not criticise the inspector’s overall approach save for this omission (and Ground 2 below). Moreover, he submitted, this was not a reasons challenge, but a failure to consider the grant of temporary permission at all, despite being referred to the reasons for the proposal of a temporary permission in the document that contained the Borough’s list of suggested conditions. The Submissions of the Defendants – Ground 1.[41]The Secretary of State (represented by Ms Sarah-Jane Davies) and Mr Smith (represented by Mr Timothy Jones) presented a common front.[42]First, they submitted that the inspector had not been asked to consider any kind of fall-back position. He was asked to, and his task was to decide whether or not a permanent permission should be granted. He was not asked to consider whether the grant of a temporary condition would be necessary to make an otherwise unacceptable development acceptable. The inspector fulfilled what he was asked to do. His condition that the development should be tied to the Smith family was entirely consistent with his decision that the personal factors were critical to and justified the very special circumstances for what would otherwise be inappropriate development.[43]Second, in any event it was clear the inspector did have the Borough’s proposed condition (for a five year temporary permission) before him.[44]Third, there was no material before the inspector which justified any inference that there was a “reasonable expectation” that there would be any site available for the occupation of the Smith family (or at all) at the end of the five year period proposed, or for that matter at the end of any particular period. Quite the opposite. Discussion on Ground 1.[45]I accept the submissions of the Defendants. The inspector referred to ODPM Circular 01/2006 in his Decision Letter a number of times. True he did not specifically refer to paragraphs 45-46 nor to the potential use of a condition imposing temporary planning permission until sites for gypsy use were allocated but in my judgment he had the point well in mind in reaching his decision. There is, in my judgment, no basis for concluding that there was a “reasonable expectation” that allocated sites for gypsies or for the Smith family would be available at the end of the proposed five year temporary permission or even any specific longer period. He found that the Borough had only made “limited progress” in addressing the unmet needs of sites for gypsies and their target of adoption of their site specific DPD by summer of 2012 seemed “optimistic”. They were only in “the early stages” of preparing their site allocation plan. Their existing planning was “inadequate”. It is plain he did not feel there was any “reasonable expectation” there would be any available sites allocated at the end of the proposed period or at the end of any other period. He was not even invited to consider a longer period than five years. He had referred to earlier planning decisions where a temporary permission had been granted.[46]It seems to me the inspector had these factors well in mind as well as the Borough’s written proposal for a five year temporary permission. He was not invited to make or consider a longer period than five years. The inference is that the inspector was not satisfied there was a reasonable expectation of sites being available at the end of that period and whether they would be available at the end of any longer period would have been a matter of mere speculation which in my judgment the inspector was not bound to carry out. Even if he did fail to consider the condition making the permission temporary, that does not lead to an inevitable conclusion that his decision is flawed: see Ayres above. There was ample material before him to justify the conclusions he reached.[47]I conclude therefore that the Borough’s first Ground of Appeal fails. The Submissions of Barnsley MBC – Ground 2.[48]Mr Carter’s submissions on Ground 2 centred on paragraph 27 of the inspector’s Decision Letter quoted above. He submitted that the inspector in listing and taking into account the factors listed in the paragraph procedurally erred in that he failed to give the Borough a “fair crack of the whip”. These factors had never been advanced by Mr Smith nor were they raised at the hearing. Had he done so the Borough would have had an answer to all of them or would at least have made submissions on them which would or could have led to a different result. Instead they were denied the opportunity.[49]Specifically Mr Carter analysed the paragraph sentence by sentence and suggested either specific comments in relation to some or that the Borough could have made submissions in relation to others.[50]Broken down it amounted to this, the Borough would have:a. Informed the inspector that as pitches at the Ings Road Site became vacant they were taken up by other people, even after the flooding events referred to;b. Emphasised that the use of the Ings Road Site was lawful and unlikely to be brought to an end other than by the owner’s decision;c. Submitted that the weight to be attributed to the potential benefits described was limited due to the two foregoing factors;d. Made submissions on the comparative features of the impact on the openness and visual amenities caused by the use of the two sites;e. Argued that other sites found through the DPD process could also have brought the potential benefits for the Green Belt at Wombwell such as to reinforce the case for a temporary permission. The Submissions of the Defendants – Ground 2.[51]The short answer to these submissions by the Defendants was that there was nothing in them. The points were (with one possible exception) all covered in one form or another either in the material before the inspector or in his Decision Letter.[52]The exception was the inspector’s own comment about the impact on the Green Belt by the Ings Road Site and the potential benefits derived from the vacation of the site in the medium to long term. That was a matter purely within the inspector’s remit and for his own personal professional expertise and based clearly on his own view of the site. As such it could reasonably have been reasonably anticipated by anyone viewing the site (see Castleford above). In any event the matters listed in paragraph 27 were not critical to the inspector’s decision as his determination made clear: what was “critical” was the Smith family’s own personal circumstances. Discussion on Ground 2.[53]Again I accept the submissions of the Defendants. Most of Mr Carter’s criticisms of the inspector’s conclusions in paragraph 27 of his Decision Letter were met in the self same paragraph. Thus the inspector recognised that the vacated plots might be occupied by others even though the Borough conceded the site was not ideal (para. 26) and its future uncertain (para. 37). He also recognised (more than once) that no other sites were available to which the Smith family could re-locate. At the end of the day the factors he listed in paragraph 27 were merely further factors in favour of the appeal scheme, they were not the critical factors.[54]In my judgment the Borough have attempted, under this Ground, to seize upon a straw to build a castle of hope that the decision might be quashed. They had a fair crack of the whip on all the points raised in the paragraph by the inspector all which could reasonably have been anticipated and in many cases were. The fact that the inspector did not repeat the argument every time does not make his decision unlawful or unjust. The Decision Letter must be read as a whole and not scrutinised sentence by sentence or paragraph by paragraph. Reasonable latitude must be allowed. Looked at fairly does it fail to provide an adequately reasoned decision (see Porter (No. 2) (above)? In my judgment it does not. Inspectors will invariably view the relevant sites. It was entirely foreseeable that some kind of comparison, if only visual, was bound to be made. The Smith family were asking, in effect, for permanent permission to move to the Appeal Site because of the anxiety and fears they felt in remaining on the Ings Road Site. An inspection was inevitable. The inspector was accompanied. It was and is all part of the evidence before him and he was entitled to use his eyes, his professional expertise and experience as he did.[55]I conclude therefore that this Ground also fails.

Conclusions

[56]The inspector’s Decision Letter was a careful, well reasoned, and balanced judgment. He set out the background, listed the main issues and the factors for and against allowing the appeal and carefully considered them. I can detect no error in his approach, the manner and reasoning of his conclusions which were open to him on the material presented to him including his site visits. The parties were afforded ample opportunity to make their points both in writing and at the hearing. The Borough failed to emphasise to the inspector its fall-back position (temporary planning permission only) but did refer him to the point in its written suggested conditions and in the conditions hearing part of the appeal hearing. I do not see why the inspector should be blamed if he afforded the point the same lack of emphasis. The reality however, as I read his Decision Letter, is that he had the point well on board. Nor should he be castigated for setting out benefits or potential benefits that occurred to him, with his knowledge of the case and professional experience, from a view of the site that might accrue if the plots occupied by the Smith family were vacated. They were all points that might reasonably have been anticipated.[57]Accordingly for all the above reasons I dismiss the appeal.