Durant & Anor v Secretary of State for Communities and Local Government & Anor [2016] EWHC 321 (Admin)

Case No CO/4379/2015& CO/4380/2015[2016] EWHC 321 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 February 2016
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
ANTHONY DURANTClaimants/HORACE DURANTAppellants(1) SECRETARY OF STATE FORDefendants/COMMUNITIES AND LOCAL GOVERNMENTRespondents(2) DONCASTER METROPOLITANRespondentBOROUGH COUNCILRespondent
Alan Masters (instructed by Lester Morrill Solicitors) for ClaimantsGwion Lewis (instructed by Government Legal Dept) for First DefendantSaira Kabir Sheikh QC (instructed by DMBC Legal Dept) for Second DefendantHearing Hearing date: 11 February 2016
JudgmentMr Justice Supperstone :Introduction
[1]These proceedings relate to the use of Green Belt land on the west side of Selby Road, Askern, Doncaster (“the Site”) by two gypsy families for residential purposes. The First Claimant lives with his family in a mobile home on the part of the Site known as “The Thistles”. His brother, the Second Claimant, lives in another mobile home with his own family on the other part of the Site known as “Meadow View”.[2]In a decision issued on 1 April 2011 a planning inspector appointed by the First Defendant granted a temporary planning permission for the use of the Site as a gypsy caravan site by two named families, the First Claimant’s family and the James family, who were living on the site at that time. The conditions of the 2011 Permission included a requirement that, within three years of the grant of permission, or upon the gypsy families vacating the Site if sooner, the use would cease. The First Claimant and his family continued to live on the site beyond the end of the three year period. The James family vacated the site, but the Second Claimant and his family took their place. As a result, the local planning authority, the Second Defendant (“the Council”) issued an enforcement notice on 13 November 2014 (“the EN”).[3]The Claimants seek to challenge the decision of an inspector appointed by the First Defendant dated 14 August 2015, following a hearing and site visit on 7 July 2015, in which she(1) dismissed the First Claimant’s appeal under s.174 of the Town and Country Planning Act 1990 (“the TCPA 1990”) against the EN; and(2) dismissed the First Claimant’s appeal under s.78 of the TCPA 1990 against the Council’s refusal to grant a fresh planning permission under s.73A of the TCPA 1990 with new conditions so as to regularise the ongoing use of the Site by the two Claimants’ families.[4]There is before the court both(1) an application under s.288 of the TCPA 1990 in respect of the dismissal of the s.78 appeal; and(2) an appeal under s.289 of the TCPA 1990 in respect of the dismissal of the s.174 appeal. The hearing before the court is the substantive hearing of the s.288 application, and the rolled-up hearing of the s.289 appeal. Legal and Policy Framework Appeals to the High Court under the TCPA 1990, ss.288 and 289

Legal and Policy Framework

[5]In Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) Lindblom J, as he then was, summarised, at para 19, the well-established legal principles relevant to consideration of a challenge to an inspector’s decision which, so far as is material, are as follows:
“(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to ‘rehearse every argument relating to each matter in every paragraph’ (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment [1981] 42 P&CR 26 at p.28). (2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and anr v Porter (No. 2) [2004] 1 WLR 1953 at p.1964 B-G). (3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, ‘provided that it does not lapse into Wednesbury irrationality’ to give material considerations ‘whatever weight [it] thinks fit or no weight at all’ (see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at p.780 F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for the Environment, Transport and Regions [2001] EWHC 74 Admin, at paragraph 6). … (7) Consistency in decision making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ. Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2013] 1 P&CR 6, at paragraphs 12-14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137, at p.145).”

Hearings Procedure

[6]The Town and Country Planning (Hearings Procedure) (England) Rules 2000 as amended (“the Rules”) contain the procedural rules for planning hearings. Rule 11 deals with the procedure at the hearing.[7]Rule 11 provides, so far as is material:
“(1) Except as otherwise provided in these Rules, the inspector shall determine the procedure at a hearing. … (6) A person entitled to appear at a hearing shall be entitled to call evidence but, subject to the foregoing and paragraphs (7) and (8) the calling of evidence shall otherwise be at the inspector’s discretion. … (9) The inspector may allow any person to alter or add to a full statement of case received under rule 6, article 33 of the 2010 Order, or regulation 8 of the Listed Buildings Regulations, so far as may be necessary for the purposes of the hearing; but he shall (if necessary by adjourning the hearing) give every other person entitled to appear who is appearing at the hearing an adequate opportunity of considering any fresh matter or document.”

The Planning Inspectorate Procedural Guide for Planning Appeals – England (6 April 2015)

[8]Annex E concerns hearings procedure. E.9 (“Acceptance of late evidence in exceptional circumstances”) provides:
“E.9.1 Appellants, local planning authorities and interested people should not try to ‘get around’ the rules by taking late evidence to the hearing. E.9.2 If, exceptionally, a party feels that further evidence should be taken into account this may be taken to the hearing. Inspectors do have discretion whether to accept late evidence. E.9.3 Before deciding whether, exceptionally, to accept it, the Inspector will require: • an explanation as to why it was not received by us in accordance with the rules; and • an explanation of how and why the material is relevant; and • the opposing party’s views on whether it should be accepted. E.9.4 The inspector will refuse to accept late evidence unless fully satisfied that: • it is not covered in the evidence already received; and • it is directly relevant and necessary for his or her decision; • it would not have been possible for the party to have provided the evidence when they sent us their full statement of case; and • it would be procedurally fair to all parties (including interested people) if the late evidence were taken into account. E.9.5 If the inspector accepts late evidence this may result in the need for an adjournment. The other party may make an application for costs or the inspector may initiate an award of costs.”
E.9.3 Before deciding whether, exceptionally, to accept it, the Inspector will require: E.9.4 The inspector will refuse to accept late evidence unless fully satisfied that:

The Decision Letter (“DL”)

[9]In DL21 the Inspector noted that there is no dispute that the use of the site as a gypsy caravan site is inappropriate development in the Green Belt. Consequently she identified the main issues as:
“(1) the effect of the change of use on the openness of the Green Belt, and whether there is other Green Belt harm in addition to the harm caused by reason of inappropriateness; (2) the effect of the change of use on the character and appearance of the local area; (3) whether there are other material considerations that weigh in favour of permitting the change of use to continue; (4) whether the other material considerations weighing in favour of the development clearly outweigh the harm to the Green Belt, and any other harm, so as to amount to the very special circumstances required to justify granting permission for the development for a further permanent or temporary period.”
[10]The Inspector’s findings in relation to issues(1) and(2) are not challenged. It is issues(3) and(4) that are the subject matter of these appeals.[11]In DL32-44 the Inspector considered whether there is a need for gypsy and traveller sites in the Borough. She noted that the inspector who determined the 2011 appeal concluded that there was a considerable unmet need (DL32/33). At the time the Council submitted its hearing statement for this appeal, it argued there was a net requirement of 31 pitches. These were to be met through the determination of applications in accordance with Policy CS13 (DL34). The Inspector stated:
“35. Since that date, a further Gypsy and Traveller Accommodation Needs Assessment (GTANA) has been produced, dated March 2015. This document which has been independently reviewed, identifies a net surplus of 12 pitches over the next five years. 36. It is clear that the Council has gone to a great deal of trouble not merely to count the number of caravans and pitches, both authorised and unauthorised, within the Borough, but also to talk to the residents to determine numbers of concealed households. The Council has also had regard to the waiting list for pitches and planning applications for sites. A review of the waiting list involving contacting those on it has resulted in the numbers on it being reduced from 30 to two.”
[12]The Inspector considered the evidence relating to the need for gypsy and traveller sites in the Borough (DL37-43). Her conclusion “taking all these matters into account is that the Council has not yet demonstrated that it has a five-year supply of sites, although further work may resolve the uncertainties I have identified” (DL44).[13]The Inspector considered that there had been “a failure of policy”, on the part of the Council, “to bring forward sites” for the gypsy and traveller community over a number of years (DL46).[14]At DL47-52 the Inspector then turned to the issue on which these proceedings focus:
“Is other accommodation available to the occupiers of the site?” 47. The Council says there are vacancies on a number of sites. This includes a small number on the Council’s own sites, White Towers and Lands End, as well as 22 at Stockbridge Lane, five at Holmwood Lane, two at Glen Bungalow, three at Tilts Farm, three at Pony Paddocks and 20 at Hacienda. Occupancy restrictions at Glen Bungalow, Pony Paddocks and Hacienda mean that those sites could not be said to be available now, although some or all may become available in the near future if the Council resolves the occupancy issues. 48. The appellant said that the pitches at Glen Bungalow had been reserved for future occupiers and those at Pony Paddocks were not actually available as the occupiers were away travelling. He also said that personal relationships with the owner of the Holmwood site ruled out that as an option, and I accept that. However that still leaves a number of sites where pitches are available. 49. The appellant says that the standard of the sites at Stockbridge Lane and Lands End would rule them out as suitable accommodation. Stockbridge Lane is said not to have any buildings on the site with facilities, although according to the Council there is a water supply. Lands End is a Council run site which, the Council says, provides up to standard pitches, including 12 new pitches. This site was criticised in 2014 by the Inspector dealing with the 10 Acre Farm appeal as having a poor family environment. There is no evidence before me as to why that might be, or as to whether the criticism is still justified, but the site is somewhat remote. 50. The occupiers of the appeal site clearly have a preference to stay where they are rather than go on to any of the sites where there are vacancies, and have raised various generalised objections to the other alternatives suggested. But the evidence strongly suggests that there are other sites available which they could occupy, albeit not in Askern where they have local ties and wish to live. 51. The appellant criticises the lack of choice available particularly of small family-owned sites. But there appears to be a reasonable number of different sites available or likely to become available for occupation within the near future. There is no convincing evidence that those sites would not be regarded objectively as acceptable, even if the appellant might not regard them as acceptable to him. 52. I am not satisfied that the only reasonable alternative for the families if planning permission were refused would be on the roadside or on another unauthorised site. This is in contrast to the situation in 2011, when the Inspector gave substantial weight to the likelihood that the family would have to resort to unauthorised camping if planning permission was refused.”
[15]At DL53-56 the Inspector considered the personal circumstances of the two families.[16]The Inspector then conducted the planning balance (DL57-67). She said:
“57. The use of the appeal site as a residential caravan site is inappropriate development in the Green Belt. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. The development significantly reduces openness. It also conflicts with the Green Belt purpose of assisting in safeguarding the countryside from encroachment. I attach substantial weight to this harm to the Green Belt. I also attach significant weight to the harm to the rural character and appearance of the area and to this part of the Green Belt caused by the development. 58. On the other side of the balance, the Council has not demonstrated that it has a five-year supply of sites for gypsies and travellers, and development plan policy has failed over a number of years to deliver the number of sites required. I attach significant weight to these considerations. However, the written ministerial statement of July 2013 makes it clear that the single issue of unmet demand for traveller sites is unlikely to outweigh harm to the Green Belt and other harm to constitute the ‘very special circumstances’ justifying appropriate development in the Green Belt. 59. Refusing to grant a permanent planning permission would result in the occupiers having to leave the site and find alternative accommodation. This would lead to significant disruption to their home and family life, even given the availability of other sites. There would be cultural benefits for the occupiers if they continued to live on the site. There would be benefits to the school-age children currently living on the site, who would have convenient access to local schools. The best interests of the children are a primary consideration in this appeal, and it would be in their best interests to have a settled home base from where they could go to school and access healthcare and other social facilities. In addition, the adults living on the site would also benefit from continuation of the access they currently enjoy to health service facilities. But I attach only moderate weight to these considerations, as I am not satisfied on the available evidence that there are no other sites available for the current occupiers, if they were required to leave the appeal site. In addition, I am not satisfied that, if the families moved to another site, access to education and healthcare would be lost or they would be unable to continue to live their traditional way of life. 60. I also attach only limited weight to the wishes of the occupiers to live in the Askern area, where they have local ties, and their desire for their children to grow up together. There is no overriding right to a home in a particular desired location, regardless of planning policy considerations. 61. Putting all these matters into the balance, therefore, I conclude that these other considerations together do not clearly outweigh the harm to the Green Belt and the other harm identified, so as to amount to the very special circumstances required to justify granting a permanent permission.”
[17]Nor was the Inspector persuaded that the planning balance was in favour of a temporary permission (DL62-65). At DL66, considering the human rights of the Claimants and their families, she said:
“Dismissing the appeal would interfere with the human rights of the occupiers of the site, because they would lose their home and their family life would be disrupted as a result. However, the protection of the Green Belt is a legitimate planning policy consideration, and the interference with the occupiers’ human rights would be no more than is necessary to control the use of the site in the general public interest. It would not be disproportionate.”

Grounds of Appeal

[18]The grounds of both challenges are identical and so can be taken together.[19]It appeared from the original grounds of challenge that the Claimants alleged the Inspector: i) misunderstood and failed to apply the correct test when considering whether other available sites were “suitable” for the Claimants and their families; ii) failed properly to understand and to take account of the evidence in relation to the “suitability” of other sites; iii) failed to take account of the Claimants’ rights under Article 8 ECHR; and iv) failed to provide adequate reasons to explain her decision.[20]Mr Alan Masters, who appears for the Claimants, in his skeleton argument sought to raise a further ground, namely that there was a breach of the relevant statutory procedural rules and/or procedural unfairness and/or a breach of Article 6 ECHR as a result of the Inspector allowing the Council to rely on “late” evidence at the hearing in relation to alternative sites.

(c) in the original grounds to add:

“… It had not been part of the Council’s written case that there were alternative sites available in the Borough which were available to the Appellant. The Council through their counsel Miss Sheikh made this case for the first time orally at the Inquiry. This was a breach of the procedural rules and was compounded by the fact that the Inspector gave no opportunity to the Appellant or his representative to test the veracity of this new evidence or submit evidence in rebuttal. Mr Brown had to do his best ‘on the hoof’ to respond to this significant and pivotal change of case. Thereafter and wrongly the Inspector went on to rely upon this new evidence to reject the appeal.”
[21]In support of this new ground the Claimants relied upon the witness statement dated 20 December 2015 of Mr Philip Brown, a planning consultant, who represented them at the hearing.[22]I allowed the application to add this additional ground of challenge, neither defendant objecting to it.

Application to adjourn the hearing

[23]During the afternoon of 10 February 2016 the Claimants’ solicitors gave notice that having received the witness statement of Mr Gary Hildersley, the Council’s principal planning officer, on 1 February 2016 in response to Mr Brown’s witness statement, the Claimants “will be either applying for leave to respond to the statement by written submissions after the hearing tomorrow or applying for an adjournment, whichever the court considers the best course of action”. The reason given was that because Mr Brown “has recently had major surgery and has only just returned to work he has been unable to draft a response”.[24]At the outset of the hearing Mr Masters applied for an adjournment, alternatively for leave for Mr Brown to respond in writing to Mr Hildersley’s witness statement after the hearing. This application was opposed by Mr Gwion Lewis, who appears for the Secretary of State, and Ms Saira Sheikh QC, who appears for the Council.[25]I refused the application for an adjournment. There was no medical certificate from Mr Brown or any witness statement in support of the application. Mr Masters said that Mr Brown had a backlog of work as a result of his operation. That may be so, however it appears from correspondence relating to another hearing that Mr Brown was due to attend on 11 January 2016 that the major surgery he underwent was on his ankle the previous week. Mr Masters said that he saw Mr Brown, who is now on crutches, in attendance at an adjourned public inquiry on Tuesday of this week. There has been no explanation as to why Mr Brown did not give priority to responding to Mr Hildersley’s witness statement, as Mr Lewis submits he should have done, for the purposes of the present hearing.[26]Further Mr Lewis and Ms Sheikh both submit that it would be highly unsatisfactory for Mr Brown to respond to Mr Hildersley’s witness statement after the conclusion of the hearing. Depending on what Mr Brown says the Defendants may need to reply to the evidence and there may be the need for a further oral hearing.[27]I reserved my decision on that application until the conclusion of oral submissions, indicating that I would then consider further whether there were any material matters to which Mr Brown needed to respond. After hearing the submissions I formed the view that there were no such matters and that it would not be in the interests of justice for the appeals to be adjourned for Mr Brown to respond to Mr Hildersley’s witness statement, having regard to the additional time and expense that would necessarily be incurred. Accordingly I refused permission for Mr Brown to respond to Mr Hildersley’s witness statement after the hearing.

The parties’ submissions and discussion

[28]The principal ground of challenge advanced by Mr Masters in his oral submissions related to the “late” evidence. I shall therefore start with that ground, which was referred to by the parties as Ground 1. Ground 1: Breach of the statutory hearing rules, procedural unfairness and/or breach of Article 6 ECHR[29]Mr Masters submits that “late” evidence was submitted by Ms Sheikh for the Council at the hearing which “was entirely new and changed the basis of the Council’s case on availability of suitable acceptable alternative accommodation and was pivotal to the way the Inspector determined the case” (skeleton argument, para 14). The “late” evidence on which Mr Masters relied was the GTANA dated March 2015, which in his oral submissions he described as fundamentally changing the Council’s case.[30]In the Council’s statement of case, served in January 2015, it was the Council’s case that the Council’s unmet need for accommodation will be addressed through the determination of applications in accordance with the criteria set out in Policy CS13 and making lawful several unauthorised sites where possible (paras 6.31 and 6.32). By contrast the GTANA dated March 2015 shows a current surplus of 25 pitches, and a net surplus of 12 pitches over the next five years (pp.9-10).[31]Mr Masters submits that the Inspector failed to have regard to the Planning Inspectorate Hearings Procedure in relation to the acceptance of late evidence (see para 8 above). In breach of the requirement in E.9.3 the Inspector did not ask for an explanation as to why the Council had not submitted the evidence in accordance with the rules, and most importantly, had not sought Mr Brown’s views on whether it should be accepted. E.9.4 requires the Inspector to refuse to accept late evidence unless fully satisfied that it would be procedurally fair to all parties if the late evidence were taken into account. The Inspector failed to address her mind to this requirement.[32]Mr Masters submits that it was not procedurally fair to the Claimants for this late evidence to be taken into account, as is clear from the witness statement of Mr Brown. Mr Brown states that the Council’s case that there were alternative sites in the Borough which were reasonably available to the Claimants was “made orally at the Hearing with no prior warning” (para 7). He states (at para 8):
“At the Hearing, the Council introduced new evidence as to the, so called, availability of empty pitches on a number of caravan sites in the Borough to which I was expected to respond ‘on the hoof’. No evidence was provided prior to the Hearing concerning the caravan counts undertaken by the Council in March and July of 2015, and no written copies of these counts were provided during the hearing. There was no opportunity given for testing the veracity of the new evidence being provided orally by Council Officers, i.e. I had no opportunity to visit the sites where pitches were said to be available, or to question the site owners as to their intentions.”
[33]I agree with Mr Lewis that Mr Brown is not correct in asserting that it was not part of the Council’s written case that there were alternative sites in the Borough which were reasonably available to the Claimants. In its hearing statement the Council referred to vacancies on existing sites: at para 6.30 there is reference to “a significant number of available vacant pitches”; at para 6.31 it is said that “New pitches are currently being provided through the approval of planning applications for extensions to Council owned and run sites at Armthorpe and Lands End, Thorne”. Examples then given by the Council of sites with, or imminently to have, available space include sites at White Towers, Lands End, and Gibbon Lane, Thorne; and at para 7.3 it is noted that “recent information indicates there are vacancies on existing sites which could reasonably be occupied by the appellants. No evidence has been given that these sites are not suitable”.[34]Mr Masters suggested that the first time Mr Brown saw the GTANA dated March 2015 or was aware of its contents was at the hearing before the Inspector. I reject this contention. The GTANA is not listed in the list of documents produced at the hearing, attached to the DL, nor is there any suggestion in the DL that it was produced for the first time at the hearing; nor does Mr Brown in his witness statement say that he had not seen the GTANA prior to the hearing. If the document had been produced for the first time at the hearing I would have expected Mr Brown to have raised the matter with the Inspector and at the very least to have requested time to consider the detail of its contents. However there is no indication that he did so.[35]Moreover, when Mr Masters in his oral submissions suggested that Mr Brown had not seen the GTANA before the hearing, Ms Sheikh produced an e-mail dated 13 March 2015 from Mr Hildersley to the Planning Inspectorate, in relation to another appeal, (copied to philipbrownassociates@talktalk.net) attaching a copy of the GTANA, and giving the Council’s link where it could be found online.[36]The GTANA dated March 2015, as Mr Hildersley observes in his witness statement (at para 5) provides:
“… a written methodology as well as a breakdown of each individual site including previous planning permissions, number of pitches on site, number of occupied authorised pitches, number of unauthorised pitches, number of vacant pitches and new pitches planned/due to be completed within 12 months. The data included in the column ‘number of vacant pitches’ provided a list of those sites in which the Council considered possible alternative sites.”
[37]Ms Sheikh in her oral submissions referred me to the detail of the GTANA, and in particular to the data relating to the number of vacant pitches at pages 166-169 of the “Amended Hearing Bundle”. I do not consider it necessary to set out that data in this judgment.[38]Even if that be so, Mr Masters submits that the mere transmission of the new GTANA to the Inspector in March 2015 does not amount to an amendment to the Council’s written statement of case. What was required was a formal amendment of the statement of case, setting out the implications of the GTANA on the Council’s case so that the Claimants could understand how the case had changed and be in a position to meet it. I reject this submission. I agree with Mr Lewis that there was no need for a formal amendment to the Council’s statement of case. It is clear from reading the GTANA that whereas the Council had originally accepted there was an unmet need, there now was not, and the Council was providing the detail of vacancies on a number of sites (see para 37 above).[39]It is accepted by Mr Lewis and Ms Sheikh that at the hearing the Council provided further detail about the sites with availability, as recorded in the DL (see DL47). This, as described by Ms Sheikh, amounted to no more than an amplification of the information provided within the GTANA the GTANA providing a snapshot at a particular date. As Mr Lewis observes, the position was plainly not a static one. There necessarily had to be some updating of the information at the hearing. The Inspector had to determine the appeal on the basis of the position as at the date of the decision, having regard to the evidence she received.[40]That being so a prohibition on the introduction of new evidence after the submission of the Council’s statement of case would be unworkable. The statutory rules plainly provide for the introduction of new evidence (see para 7 above). Rule 11(1) gives the inspector a wide discretion to determine the procedure at the hearing. Rule 11(9) gives the inspector discretion “to alter or add to a full statement of case… so far as may be necessary for the purposes of the hearing”. However if a statement of case is to be altered or added to the inspector shall, if necessary by adjourning the hearing, give every other person entitled to appear, who is appearing at the hearing “an adequate opportunity of considering any fresh matter or document”.[41]Mr Brown in his witness statement states that he has over 30 years’ experience of planning matters gained in local government and private practice (para 1). He has specialised since 1994 in obtaining planning permissions for caravan sites, and associated developments, primarily for the Gypsy and Traveller communities. He states that he has frequently appeared at planning hearings and inquiries to give expert evidence on planning matters (para 2).[42]I agree with Mr Lewis and Ms Sheikh that in the light of Mr Brown’s extensive experience of attending planning hearings and inquiries if he had required time to consider any “late” evidence he would have known that he could have asked the Inspector for it. I consider it significant that he did not ask for an adjournment to test the veracity of “the new evidence” or to visit the sites where pitches were said to be available, or to question the site owners as to their intentions, as he now says he required (see para 8 of his witness statement at para 32 above).[43]Indeed it appears from para 11 of his witness statement that he was able to present evidence from the Appellant (supported by a letter signed by the site owner) that any empty pitches at Glen Bungalow were reserved for existing occupiers, and, similarly, that those at Pony Paddocks were not actually available as the occupiers were away travelling. This appears to suggest that he had some knowledge of some of the sites that the Council said were available. Mr Brown notes that the Inspector accepted the Appellant’s evidence on these sites, together with the Appellant’s evidence that personal relationships with the owner of the Holmwood site ruled that out as an option (see DL 48 se out at para 14 above).[44]Further I am not persuaded that there was any “late” evidence that falls within Appendix E of the Planning Inspectorate hearings procedure (see para 8 above). It seems to me that the evidence given orally at the hearing was, as I have said, the type of evidence that I would expect to be given at such a hearing to update the written evidence. In any event the hearings procedure contained in the procedural guide of the Planning Inspectorate is a non-statutory procedure. Mr Lewis described the document essentially being “a users’ guide”, intended mainly for unrepresented litigants. It is guidance (not a set of rules) covering a wide range of appeals seeking to ensure a fair outcome. Mr Lewis submits that there is a need to consider what happened on this appeal in the round and ask whether the appeal was procedurally unfair, taking into account what occurred at the hearing and having regard to the fact that there was no complaint by Mr Brown that there was any late evidence that caused him any difficulty. Adopting that test, which I consider to be correct, I conclude that even if, contrary to my view, the guidance in E9 is engaged, there was no procedural unfairness at this appeal hearing. Ground 2: failure to record the evidence, confusion and imprecision.[45]In his written submissions Mr Masters submits that on a proper analysis of both the evidence before the Inspector and her own test of availability (DL39), only one site could be said to be available, namely the Lands End site containing four pitches. In support of this submission Mr Masters relies on the witness statement of Mr Brown (at paras 14 and 19).[46]In his oral submissions Mr Masters appeared to focus more on the reasoning of the Inspector and submitted that her statement “that still leaves a number of sites where pitches are available” (DL48) fails to identify the sites in respect of which she made a finding that pitches are available.[47]In my view a fair reading of paras 47-51 (see para 14 above) as a whole makes clear the sites that the Inspector considered to be available. The Council said that there are vacancies on a number of sites. Eight were identified. However the First Claimant said that three of them could not be said to be available: the pitches at Glen Bungalow and Pony Paddocks were not available because the former had been reserved for future occupiers and the latter because the occupiers were away travelling. He also said the personal relationships with the owner of the Holmwood site ruled out that as an option, which the Inspector accepted. It follows that the “number of sites where pitches are available” include White Towers, Lands End, Stockbridge Lane, and Tilts Farm. In addition the Council was of the view that “some or all” of the sites at Glen Bungalow, Pony Paddocks and Hacienda “may become available in the near future if the Council resolves the occupancy issue”.[48]DL49 is more concerned with suitability (see ground 3 below). The First Claimant says that the standard of the sites at Stockbridge Lane and Lands End rules them out as suitable accommodation, although the Council says that there is a water supply at Stockbridge Lane, and Lands End provides up to standard pitches, including 12 new pitches. The Inspector notes that the Lands End site was criticised by the inspector in 2014 dealing with the 10 Acre Farm appeal as having a poor family environment, but comments that there is no evidence before her as to why that might be, or as to whether the criticism is still justified, although she observes the site is somewhat remote.[49]I do not consider that there can be any doubt as to what the Inspector is saying about the number of sites where pitches are available. The Inspector was exercising her planning judgment as she was required to do. I agree with Mr Lewis that this ground amounts to nothing more than disagreement with the Inspector’s conclusion that the Stockbridge Lane and Lands End sites were both available and suitable.[50]The Inspector concluded that there was “a reasonable number of different sites available or likely to become available for occupation within the near future” (DL51). She did not make definitive findings in respect of each potential site; rather she came to the general conclusion, having regard to the evidence as a whole, that it “strongly suggests that there are other sites available which they could occupy” (DL50). In coming to that general conclusion she was entitled in my view to give weight to potential vacancies at Stockbridge Lane when pitches on that site were “still vacant at the time of [her] site visit” (DL39). Moreover, I agree with Mr Lewis that even assuming that Mr Brown is correct that there were “no empty pitches” at the White Towers site during the site visit on 7 July 2015 (see his witness statement at para 12), it does not follow the Inspector should give no weight to the Council’s evidence that the site had a “small number” of vacancies (DL47). The Inspector was not only making a judgment about availability at the time of the site visit, but also about availability in the near future given her willingness to extend the time for compliance with the EN to 12 months.

Ground 3: failure in any event to distinguish between availability and suitability

[51]Mr Masters submits that absent from the Inspector’s assessment of availability is any reference to suitability in terms required by the European Court of Human Rights in Chapman v United Kingdom [2001] 33 EWRR 18 and the domestic courts in Doncaster v Angela Smith [2007] EWHC 1034 (Admin). The Inspector, Mr Masters submits, when considering the issue as to whether accommodation is available to the Claimants, wrongly based her analysis only on an objective test of “acceptability”, failing to distinguish this with the need to take and apply a subjective test as to suitability for the particular needs of the Claimants.[52]In support of this submission Mr Masters in his oral submissions relied in particular on paragraph 103 in the judgment of the Court in Chapman:
“A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.”
[53]The judgment continues at para 104:
“The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned—his or her family requirements and financial resources—and, on the other hand, the rights of the local community to environmental protection. This is a task in respect of which it is appropriate to give a wide margin of appreciation to national authorities, who are evidently better placed to make the requisite assessment.”
[54]I reject the submission that the Inspector failed to have regard to “the particular needs of the persons concerned”. She dealt in terms with the “personal circumstances” of the Claimants and their families, with particular regard to their work arrangements, their co-dependency as two families, and the proximity of the Site to health and education facilities. The Inspector was satisfied that all of these aspects of the families’ lives could be continued satisfactorily on the other available sites (DL53-56).[55]I agree with Mr Lewis that taking account of the subjective needs of the family for Article 8 ECHR purposes does not require deferring to their subjective preference as to where they wish to live. The relevant question is whether there are alternative sites which could objectively meet the needs of the family, taking account of their particular needs. I consider that that was the exercise properly carried out by the Inspector in the DL.[56]Mr Masters further submits that absent proper reasoning the Inspector has not provided any justification for departing from the finding of fact made in the 2014 decision in respect of the issue of suitability of all the sites, and in particular the Lands End site.[57]I reject this submission. The Inspector had regard to the observation of the inspector in 2014 with regard to the Lands End site (DL49); however she took a different approach from the previous inspector on the question of the suitability of the site and explained why (DL49, set out at para 14 above).

Ground 4: failure to take account of the Claimants’ rights under Article 8 ECHR

[58]Mr Masters in his oral submissions sensibly dealt with this ground as part of Ground 3 relating to suitability of other sites.[59]For the reasons I have already given I am satisfied that the Inspector did have proper regard to the Article 8 ECHR rights of the Claimants and their families. She did so, in particular, at DL53-56 when considering their personal circumstances and importantly at DL 59 when conducting the planning balance. She noted that refusing to grant permanent planning permission would result in the Claimants and their families having to leave the site and find alternative accommodation which “would lead to significant disruption to their home and family life, even given the availability of other sites”. Further, she noted that “the best interests of the children are of primary consideration in this appeal”, and referred to the decision of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74. Again at DL66 the Inspector noted that dismissing the appeal would interfere with “the human rights” of the Claimants and their families “because they would lose their home and their family life would be disrupted as a result”. However “the interference with the occupiers’ human rights would be no more than is necessary to control the use of the site in the general public interest”. Accordingly she found that it would not be disproportionate (DL66). I can discern no error in this reasoning.

Ground 5: failure to provide adequate reasons for the decision

[60]Mr Masters in his written submissions submitted that the Inspector failed to give adequate reasons for her decision and in particular failed to identify the correct issues and facts. In his oral submissions he appeared to subsume this ground into his submissions on grounds 2 and 3 relating to the availability and suitability of alternative sites. As I have said, I consider that the Inspector properly explained her conclusions on both availability and suitability.[61]I am satisfied that the reasons provided by the Inspector for the conclusions she reached are clear and more than adequate.

Conclusion

[62]For the reason that I have given i) the application under s.288 is dismissed, and ii) I refuse permission to proceed with the s.289 appeal, the grounds not being, in my view, properly arguable.