Bath & North East Somerset Council v Connors & Ors [2006] EWHC 1595 (QB)

[2006] EWHC 1595 (QB)

Case No TLQ/06/0321

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 05/07/2006

Before

MR JUSTICE TUGENDHAT

Between

BATH & NORTH EAST SOMERSET COUNCILClaimant

EILEEN CONNORS & OrsDefendant

Mr Richard Langham (instructed by Sharpe Prichard) for Claimant

Mr Marc Willers (instructed by The Community Law Partnership) for Defendants

Hearing Hearing dates: 19, 20, 21 June 2006

Judgment

INTRODUCTION

[1]In these proceedings, commenced in December 2005, the Claimant seeks injunctions under Section 187B of the Town and Country Planning Act 1990 to restrain existing and anticipated breaches of planning control. The Claimant is the local planning authority for a plot of land known as Plot 29 Hartley Farm, Charmy Down, Upper Swainswick, Bath BA1 8AF (“the Land”). The lawful use of the Land is for the purposes of agriculture. The Defendants are gypsies who have stationed caravans on the Land in breach of planning control. The Third Defendant is the registered proprietor of the Land.

[2]In October 2003 the Third and Fourth Defendants applied for planning permission for use of the Land for the stationing of gypsy caravans. The Claimant refused planning permission for this in March 2004. The Defendants started occupation of the Land in the spring of 2004. There was an appeal under Section 78 of the Town and Country Planning Act 1990 against the refusal of planning permission by the Claimant. An inquiry opened on 1st February 2005. The Inspector appointed by the First Secretary of State, Diane Lewis (BA Hons) MCD MA LLM MRTPI (“the Inspector”) reported on 20th April 2005. She recommended that the appeal be dismissed. In a decision letter dated 21st June 2005 the First Secretary of State accepted the recommendation that the appeal be dismissed.

[3]Section 187B of the Act reads as follows:

"(1) Where a local planning authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part." (2) On an application under subsection (1) the Court may grant such an injunction as the Court thinks appropriate for the purpose of restraining the breach."

[4]The order sought upon this application is that the “Defendants remove from the Land all caravans, sheds and portable toilets stationed thereon within three months” and other related relief. On 11th January 2006 Newman J granted an interim order that the Defendants be restrained from causing or permitting any additional caravan to be stationed on any part of the Land, and related relief. This order was renewed by Silber J on 25th April 2006. At the same time he gave directions for the trial of this matter. The directions included permission to call expert evidence on highways and planning matters, Mr Baker and Mr Cox for the Defendants, and Mr Hogan and Mr Majer for the Claimant.

[5]There has been no enforcement notice or other enforcement proceedings. It is common ground that the occupation of the Land by the Defendants is unlawful. It is a breach of planning law, and not a minor one. They entered on to the Land after refusal of permission to do so. But in this case the Defendants are not in breach of the law in any of the other and aggravating respects in which Defendants in similar cases commonly are. Mr Willers represents the First, Second, Fourth, Sixth, Seventh and Eighth Defendants, and Paul Andrews (another person who lives on the Land and is treated as member of the family), who has been joined as a Defendant upon his own application. I shall refer to them as “these Defendants”. No other Defendants have attended or been represented. These Defendants are not trespassing. They are not in contempt of court. They are not in breach of the criminal law. They are co-operating with those who, on behalf of the Claimant, are assessing the personal needs of themselves and of their children. They have accepted that an injunction should be granted, but ask the Court to suspend its terms until the final determination of the fresh application for temporary planning permission which will be explained below (para 9). They have at all material times, including in oral evidence before the Inspector, confirmed that they are agreeable to leaving the site and relocating to a suitable alternative site. A number of these Defendants attended the hearing, and there are good reasons why they did not all do so. These Defendants have not manifested the disrespect for the court that is noted in relation to some Defendants in other similar proceedings, which they did not attend and to which they made little or no contribution.

[6]Central to the issues I have to decide are two closely related developments that have taken place since January 2006. First, on 2nd February 2006, the Office of the Deputy Prime Minister issued Circular 01/2006 (“Circular 1/06”). As stated in that document, this Circular replaced Circular 1/94, “Gypsy Sites and Planning” and provided updated guidance on the planning aspects of finding sites for gypsies and travellers and how local authorities and gypsies and travellers can work together to achieve that aim. The Circular is to be seen in the context of the Government’s key objective for planning for housing, namely to ensure that everyone has the opportunity of living in a decent home. As is explained in the document, a new Circular became necessary because evidence shows that the advice set out in Circular 1/94 failed to deliver adequate sites for gypsies and travellers in many areas of England over the previous ten years. Since the issue of Circular 1/94, and the repeal of local authorities’ duty to provide gypsy and traveller sites there had been more applications for private gypsy and traveller sites, but this had not resulted in the necessary increase in provision.

[7]The Introduction goes on to include the following: “4. Creating and sustaining strong communities for the benefit of all members of society including the gypsy and traveller community, is at the heart of the Government’s Respect agenda. These communities will depend ultimately on a shared commitment to a common set of values, clear rules and willingness for people to act together to resolve differences…. This Circular will help to promote good community relations at the local level, and avoid the conflict and controversy associated with unauthorised developments and encampment. 5. Gypsies and travellers are believed to experience the worst health and education status of any disadvantaged group in England. Research has consistently confirmed the link between the lack of good quality sites for gypsies and travellers and poor health and education. This Circular should enhance the health and education outcomes of gypsies and travellers. 6. Major changes to the planning system have been introduced by the Planning and Compulsory Purchase Act 2004… the planning tools which the … Act makes available and the associated move to more positive planning will help deliver communities that are sustainable and work better for people”.

[8]As already noted, these Defendants are in an unauthorised encampment. As I shall consider further below, they are also part of a group of people, including some twenty children. Amongst them are a number of adults and children with major health problems and some educational disadvantages.

[9]The second new, and linked, development occurred on 8th March 2006. These Defendants submitted a fresh planning application seeking temporary planning permission to permit them to remain on the Land until the Claimant has complied with the requirement laid down in Circular 1/06. That is the requirement to assess the accommodation needs of gypsies and travellers in its area and to identify suitable land to cater for their needs.

[10]Circular 1/06 refers to a number of documents or tasks which are referred to by acronyms. Regional Spacial Strategies (RSSs) relate to planning at the regional level. Local Development Frameworks (LDFs) relate to planning at the local level. Development Plan Documents are to identify the location of appropriate sites for gypsies and travellers. There is provision for a Gypsy and Traveller Accommodation Assessment (“GTAA”). The new planning process will begin by local authorities assessing gypsies’ and travellers’ accommodation needs as part of the GTAA. That will identify the number of pitches required for each local authority area. The RSS will include checks or modifications of pitch numbers provided by GTAAs from a regional perspective and specify pitch numbers for each local planning authority. A Development Plan Document (“DPD”) will identify specific sites to match pitch numbers from the RSS.

[11]The main intentions of the Circular 1/06 are, as set out in paragraph 12, as follows:

“a) to create and support sustainable, respectful, and inclusive communities where gypsies and travellers have fair access to suitable accommodation, education, health and welfare provision; where there is mutual respect and consideration between all communities for the rights and responsibilities of each community and individual; and where there is respect between individuals and communities towards the environments in which they live and work; b) to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular; c) to increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission in order to address under-provision over the next 3 – 5 years; d) to recognise, protect and facilitate the traditional travelling way of life of gypsies and travellers, whilst respecting the interests of the settled community; e) to underline the importance of assessing needs at regional and sub-regional level and for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively; f) to identify and make provision for the resultant land and accommodation requirements; g) to ensure that DPDs include fair, realistic and inclusive policies and to ensure identified need is dealt with fairly and effectively; h) to promote more private gypsy and traveller site provision in appropriate locations through the planning system, while recognising that there will always be those who cannot provide their own sites; and i) to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to”

(emphasis added).

[12]There are transitional arrangements provided for in Circular 1/06. They are as follows: “41. In advance of the consideration of new GTAAs at a regional level by the RPB, translated into pitch numbers for DPDs, other means of assessment of need will be necessary. RPBs will need to consider whether there is sufficiently robust information on which to establish district level pitch numbers. They will need to work closely with local authorities who will have access to a range of information on gypsy and traveller families in their area. Where it is not possible to allocate pitch numbers comprehensively in the current round of RSS revisions, RPBs will need to consider interim arrangements. This should include a clear statement as to the regional context including; a) priority attached to addressing immediate need and timescale for doing so; b) extent of existing provision; c) identifying those parts of the region with high numbers of unauthorised sites; d) an interim estimate of the additional pitch requirements at regional level; e) arrangements for putting in place district level pitch requirements (e.g. need for further research, engaging local authorities, timetable for any single issue review).42. This will be important in guiding local planning authorities as they prepare LDDs and ensuring that the RSS is well placed to deliver the regional framework in future. RPBs will need to work closely with local authorities to agree and establish transitional arrangements. A first step is to agree the priority attached to gypsy and traveller provision across the region and how best to address any immediate accommodation needs for gypsies and travellers.

43. Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTAAs. The early data available from the GTAA will be one of a range of information sources that local authorities should consider when assessing the required level of provision to translate into site allocations in a DPD, and RPBs should consider when allocating pitch numbers to each district. Paragraph 31 above refers to the core strategy setting out criteria in advance of site allocations in a DPD. Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.

44. Other sources of information could include; a) a continuous assessment of incidents of unauthorised encampments, both short and longer-term; b) the numbers and outcomes of planning applications and appeals; c) levels of occupancy, plot turnover and waiting lists for public authorised sites; d) the status of existing authorised private sites, including those which are unoccupied and those subject to temporary or personal planning permissions; and, e) the twice-yearly Caravan Count undertaken on behalf of ODPM, which gives a picture of numbers and historic trends. Local planning authorities will be expected to demonstrate that they have considered this information, where relevant, before any decision to refuse a planning application for a gypsy and traveller site, and to provide it as part of any appeal documentation.

45. Advice on the use of temporary permissions is contained in paragraphs 108-113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.

46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay.” a) priority attached to addressing immediate need and timescale for doing so; b) extent of existing provision; c) identifying those parts of the region with high numbers of unauthorised sites; d) an interim estimate of the additional pitch requirements at regional level; e) arrangements for putting in place district level pitch requirements (e.g. need for further research, engaging local authorities, timetable for any single issue review). a) a continuous assessment of incidents of unauthorised encampments, both short and longer-term; b) the numbers and outcomes of planning applications and appeals; c) levels of occupancy, plot turnover and waiting lists for public authorised sites; d) the status of existing authorised private sites, including those which are unoccupied and those subject to temporary or personal planning permissions; and, e) the twice-yearly Caravan Count undertaken on behalf of ODPM, which gives a picture of numbers and historic trends. Local planning authorities will be expected to demonstrate that they have considered this information, where relevant, before any decision to refuse a planning application for a gypsy and traveller site, and to provide it as part of any appeal documentation.

[13]The Circular 11/95 referred to in paragraph 45 of Circular 1/06 includes the following under the heading “Principles Applying to Temporary Permissions”: “109… In deciding whether a temporary permission is appropriate, three main factors should be taken into account…. Lastly, the material considerations to which regard must be had in granting any permission are not limited or made different by a decision to make the permission a temporary one. Thus, the reason for granting a temporary permission can never be that a time limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities. If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted then the only course open is to refuse permission. These considerations will mean that a temporary permission will normally only be appropriate either where the applicant proposes temporary development or when a trial run is needed in order to assess the effect on the area. 110. Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that information, or because it is expected that the planning circumstances would change in a particular way at the end of that period, then a temporary permission may be justified. For example, permission might reasonably be granted on an application for the erection of a temporary building to last seven years on land which will be required for road improvements eight or more years hence, although an application to erect a permanent building on the land would normally be refused”.

[14]Circular 1/06 has already received consideration by the courts in a number of judgments. There is no doubt that para 46 of the Circular represents a development favourable to Defendants in cases such as this. In South Bedfordshire District Council v. Price

[2006] EWCA Civ 493

, Lloyd LJ said:

“36. The new circular clearly does improve the Defendants’ case on the planning appeal. Previously, unmet need was a factor to which weight had to be given. Now the planning authorities are directed “to give substantial weight to the unmet need in considering whether a temporary planning permission is justified” (my emphasis). 37. The success of the application, at least to the extent of a temporary permission is therefore more likely than it would otherwise have been…”

[15]There has been some debate before me as to the effect of para 45 of Circular 1/06 and the interpretation of Circular 11/95, paragraphs 109 and 110, as applied by that paragraph. A further passage from Circular 1/06 relied on by Mr Willers on behalf of the Defendants is:

“63. Local planning authorities should also have regard to whether the absence of existing provision may prejudice enforcement action, or give rise to grounds for appeal against refusal of an application for a new site.”

[16]There was a corresponding provision in Circular 1/94 para 26: “The existence or absence of policies for gypsy sites in development plans could constitute a material consideration in matters of enforcement”.

[17]In summary, Mr Willers submits that in the light of these and other developments (referred to at para 44 below) these Defendants have a realistic prospect of success in their fresh appeal and that these enforcement proceedings should be suspended accordingly.

[18]Mr Langham submits that the case of these Defendants for temporary planning permission on the Land has been exhaustively considered and rejected by the Inspector and the First Secretary of State, that there is no realistic prospect of temporary planning permission being granted, and that the injunction should be granted.

[19]In South Bucks DC v Porter and another

[2003] 2AC 558

, the House of Lords considered the approach which a court should adopt to planning decisions when considering an application for the kind of section 187B relief sought in the present case. They unanimously approved the approach of Simon Brown LJ (as he then was) when giving judgment in that case in the Court of Appeal

[2002] 1 WLR 1359

. I gratefully adopt Silber J’s selection (in South Cambridge District Council v. Flynn

[2006] EWHC 1320 (QB)

) of passages from the judgment of Simon Brown LJ, as follows:(a) "……It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the Defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the Defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites."...paragraph 38);

(b) "Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical" (ibid);

(c) " If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken" (ibid);

(d) "Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the Defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission" (ibid);

(e) "Relevant too will be the local authority's decision under section 187B (1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality" (paragraph 39);

(f) "Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case" (paragraph 40); (g)"True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate' - in today's language, proportionate. The approach in the Hambleton case

[1995] 3 PLR 8

seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under section 6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the gypsy's private life and home and the retention of his ethnic identity - are at stake". (Paragraph 41) and (h) "I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."(Paragraph 42).

THE APPEAL TO THE INSPECTOR IN APRIL 2005

[20]The appeal proceeded in the names of Mr and Mrs Cash, the Third and Fourth Defendants. However, they were separated and the Third Defendant was not and is not living on the Land. The Inspector described the Land and the surrounding areas in section 2 of her Report as follows:

“2.1 The appeal site is of irregular shape and has an area of approximately 0.8 hectares. It is located on the western edge of the former air field on Charmy Down Plateau, a short distance from the A46 trunk road. A public footpath passes along the frontage of the site, utilising a track. The land surrounding the site is part of the Hartley Farm and is primarily used for grazing. Even so remnants of old buildings and hard standings associated with the former airfield are visible, the old watchtower in particular acting as a landmark. There is a scattering of dwellings, notably two small bungalows to the side of the access road, a couple of dwellings fronting the A 46 (the Cotswolds and Charmy Down House) and, to the north east the farmstead of Hartley Farm. 2.2 On the accompanied site visit I observed a total of nine touring caravans of various sizes, a chalet style mobile home and two dayrooms, plus two portaloos, generators and a shed. A corner of the site has been laid out as a garden but otherwise the ground surface is covered by gravel, shale and rubble. … 2.3 The site is located towards the end of an existing private access road which joins the A46 (T) at Hartley Bends via a short length of adopted highway. The A46 (T) links the A4 London Road into Bath with the M4 at Junction 18, thereby acting as an important link within and to the outside region. … In addition to the substantial level changes along the route, the nature of the road varies from a modern dual carriageway to the sinuous alignment through Hartley Bends, with its restricted forward visibility and narrow verges… 2.4 Bath City Centre is some 6 kilometres to the south. The site and surrounding countryside is within the Bristol/Bath Green Belt and the Cotswold Area of Outstanding Natural Beauty (the AONB). The site is also within a water source protection area. The Cotswolds rise abruptly from the River Avon to the high open plateaux landscape, where there are few trees and enclosure is by dry stone walls. River valleys steeply dissect the plateaux. The valleys are more enclosed and intimate, vegetation on the valleys sides being characteristically pasture and broadleaf woodland. Villages, hamlets and isolated farms tend to follow the foot of the slopes close to the spring linesand there is a distinct building style, using the local Oolitic limestone. There are expansive views over the wide countryside and over the city of Bath from the plateaux and scarp. The second world war air field at Charmy Down is one of the many historical features…”

[21]The Inspector notes that there have been no planning applications for the Land prior to the appeal application. She notes that the proposal is for four pitches for use as a private gypsy site. The development was for an extended family group comprising husband and wife, his mother and the wife’s two sisters. A cesspit was proposed in the absence of any main sewer. At the inquiry the Appellants (in effect these Defendants) put forward amendments. The Inspector notes a point to which Mr Langham gives some emphasis: planning permission was sought for a temporary period of three years (para 4.2).

[22]In her report the Inspector then went on to consider planning policy. So far as policy on gypsies is concerned she said the following (references omitted): “5.5 The main parties agree that RPG10 contains no policies relevant to the provision of gypsy sites. Policy 37 in the structure plan on gypsies and travellers was quashed by the Court of Appeal in October 2003. This followed the finding that the four constituent local authorities had disregarded, without giving clear reasons, a recommendation of the Examination in Public Panel to require the identification of locations for gypsy sites in local plans. The constituent authorities resolved in January 2004 that the quashing of policy 37 left local plan policies and/or Circular 1/94 as the planning policy framework for gypsy traveller sites”.

[23]The absence of any locations for gypsy sites in local plans is a matter upon which Mr Willers for the Defendants makes submissions critical of the Claimant. There are a number of criticisms of the Claimant in this regard to be found in the documents, upon which he founds these submissions to which I shall make reference below.

[24]The Inspector continues, referring to Policy HG.16. This, she says, is subject to a number of objections and therefore there was no certainty that it would be adopted in its current form. In this comment she proved to be correct as noted below. Amongst the objections were those on behalf of these Defendants, and their objections were substantially upheld. She also referred to what was at that time a Consultation Paper published in December 2004 for what became Circular 1/06. At the inquiry the Claimant was submitting that it should be accorded only limited weight because of its draft nature. The Appellants were submitting it was significant, in particular as containing recognition that a new direction was necessary in providing for gypsies and travellers. There was at that time nothing to foreshadow the Transitional Provisions set out in the Circular, and which are quoted above, relating to temporary planning permissions.

[25]The Inspector went on to record a number of matters which were common ground. These included the following:

“6.2 The Council [that is the Claimant] has not provided alternative sites for gypsy families. The Council resolved in July 2004 that a needs assessment would be undertaken to accord with advice in Circular 1/94. In the Interim Policy HG.16 of the emerging Local Plan would remain in place until such time as a decision is taken on whether or not it should be abandoned in favour of a locational policy. 6.3 There are no Council run sites in Bath and North East Somerset (BANES). The bi-annual counts for July 2002 to July 2004 reveal no vans on any authorised private sites either. The statistics for BANES indicate that since January 1996 there has been a slow and intermittent level of unauthorised encampments in the district. This contrasts with the consistently modest/high levels of unauthorised encampments in Bristol, North Somerset and South Gloucestershire. 6.4 There are Council run sites in the adjoining Counties and Districts. As of February 2005 there were no available places on these sites. 6.5 The site is located in the Green Belt and on an AONB. The use of a gypsy caravan site is not listed in PPG2 as one which is considered appropriate within the green belt. Over 80% of the District is covered by the Green Belt and/or AONB designations. 6.6 The Appellants’ gypsy status is accepted.”

[26]The Inspector then refers to various distances and locations of facilities such as shops and schools. It seems likely that of the 20% of the District that is not covered by Green Belt or AONB designations, much is Bath and other urban areas.

[27]Section 7 of the Inspector’s report summarised the case for the Appellants. Section 8 summarises the case for the Claimant. In the course of that, the Claimant noted the medical and educational needs of the Defendants and their families. The Claimant stated “the medical needs could be served from another permanent base and by other NHS facilities… The health needs are not exceptional but are consistent with a group of people of this size whether in the settled or gypsy community”. The word “permanent” is to be noted. It was not suggested that these needs could be served otherwise than from a base which was at least relatively permanent, as opposed to say a lay-by.

[28]In Section 9 the Inspector summarised the case for residents in the vicinity of the Land. She later refers to the paragraph setting out the conclusions of the Residents’ case. It reads as follows:

“9.13 On planning and highway grounds alone this appeal should be dismissed. The only possible reason for allowing it is if there is seen to be a sufficient infringement in the human rights of the Appellants. A review of recent decisions involving gypsies shows that none of the cases allowed involve sites which were both in the green belt and in the AONB. Personal circumstances in this case do not amount to very special circumstances. The Appellants refer frequently to the prospect of having to access health and education from a lay-by. Even if the appeal is dismissed and enforcement action taken the probability is that the Appellants would remain on the appeal site for up to 2 years from now. This would give the Council and other authorities time to make adequate provision for the gypsy community. ”

[29]The Appellants’ case on health and education as summarised in the report included the following. Several members of the extended family have health problems and there are children in need of medical care as set out in expert evidence. The Land enabled access to local medical services. If the families were forced to move from the Land they would be living in worse conditions and access to health care would be reduced. Mobile travellers rarely have access to fresh water, toilets and refuse collection. The chances of finding accessible outreach healthcare would be slight and they would be likely to experience some difficulty and delay in re-establishing services. For humanitarian reasons sufficient time had to be allowed for an alternative site to be found. To contemplate a person living on the roadside who has had major surgery is sufficient to conclude that the health needs are extreme and unusual. It was also noted that one boy needed twenty four hour care and was receiving ongoing specialist assessment for attention deficit disorder.

[30]The Inspector set out her conclusions in section 12 of the report. There were a number of preliminary matters which she noted. One was that, by reference to Circular 1/94, all parties acknowledged that the proposal for a gypsy site would be inappropriate development in the green belt. She went on to explain why she was considering that the proposals should be determined on the basis of the site being occupied by the four sisters and their dependants as a single extended family group. She identified six main considerations.

[31]The first was whether the current occupiers of the site were gypsies for the purpose of planning policy and she concluded that the sisters have gypsy status. The second main consideration is the effect of what is acknowledged to be inappropriate development on the character and appearance of the green belt. She reached the overall conclusion that the development has a pronounced and harmful effect on the openness of the green belt within the vicinity of the site. The third main consideration was the extent to which the proposal would contribute to delivery of sustainable development, having particular regard for the protection and enhancement of the environment, accessibility to services and community facilities, social cohesion and inclusion. In respect of these matters she concluded that the proposal would be intrusive within the landscape of the AONB and harmful to its natural beauty. She concluded that it had not been demonstrated that the ground water resource would be protected from pollution. As to accessibility, it was her opinion that the site was within a reasonable distance of services and facilities, but the location of the site, on a bend with access at a junction with the A46, meant that the occupiers of the site would not have reasonable access to arrange services and facilities. This point is considered in more detail in relation to highway safety. On this consideration she concluded that the proposal would promote social inclusion for the extended family. But several fundamental objectives important for the interests of the community as a whole would not be secured and hence overall she concluded the proposal would not make a significant contribution to the delivery of sustainable development.

[32]The last two main considerations were the effects of the proposal on highway safety and whether the harm to the green belt and any other harm were clearly outweighed by material considerations which amount to very special circumstances to justify the grant of planning permission.

[33]As to the issue of highway safety, she concluded that the continuation of the current use of the site would result in a serious reduction in highway safety. There would be a significant increase in the risk of accident. This is the issue in respect of which the expert evidence of Mr Baker was obtained and put before me with the leave of Silber J. I shall consider it further below.

[34]She then turned to very special circumstances and the balance and her overall conclusion. She repeated her conclusions as to the very significant actual harm that would be caused to this area of outstanding natural beauty, to the harm to the green belt, to the danger at the road junction and the limited contribution to the delivery of sustainable development. On the other side of the balance she referred to a number of matters put forward by the Appellants including the following: “12.50 There has been no quantitative assessment of the housing needs of the gypsy community by the Council or adjoining authorities in the Structure Plan area as required by Circular 1/94 and PPG3 [6.2, 7.31]. In addition to this deficiency underlying current policy provision, I consider the reliance on criteria based local plan policies is likely to be inadequate. In particular I refer to the Structure Plan EIP Panel’s opinion that criteria based policies had failed to meet the needs of the gypsy community and its recommendation that suitable locations be identified in local plans [5.5]. Thus in terms of the development plan, there is no relevant Structure Plan policy and emerging policy as limited weight. Consequently there is no soundly based development plan framework to guide gypsy site provision. 12.51 I am also conscious that a high proportion of the District is subject to protection through its designation as green belt and/or AONB which in turn severely limits the scope for gypsy site locations [6.5]. This results in a genuine practical difficulty for gypsies seeking to find and buy their own land and identification of locations through a local plan assumes greater importance”.

[35]She concluded that there is a significant general need for additional site provision for gypsies and travellers within the Structure Plan area. But the question as to whether the District should meet a proportion of the wider need was one that was more appropriately addressed in the forthcoming plan preparations.

[36]On the question of whether there were alternative sites, she noted that it was the death of one of her sister’s children that was the main motivation for the Fourth Defendant and the Seventh Defendant leaving a public site at Thingley in Wiltshire which they had occupied before moving to the appeal site. Given that reason she did not consider that the move counted against the Appellants. She considered that finding alternative caravan site accommodation would not be easy and that the failure to look for it should not carry much weight. She added:

“12.56 No alternative sites have been identified where the extended family could move to now, whether in BANES or in the wider area [7.27, 6.4]. It is unlikely their need would have been predicted by a local or joint authority based needs assessment because they previously were based at Thingley in Wiltshire. Nevertheless this does not overcome the fact that the need exists. With nowhere else to go, my conclusion is that they have a need to remain on the site, at least in the short term. 12.57 Against the background of inadequate development plan provision and overall considerable shortage of sites in the Structure Plan area I consider that the families’ particular accommodation needs are an important consideration lending support for the proposal.”

[37]The Inspector then considered the personal circumstances of the Appellants. Conclusions as to these are as follows:

“12.58 I consider the current occupiers, who wish to remain on the site, are a vulnerable group. Of the twenty children, sixteen are under the age of sixteen and of these seven are under the age of five. There are now two very young babies there. Since moving to the site the families have benefited from the local educational and medical services. One child is at a nursery, seven children are at primary school, two of whom were due to go to secondary school in September and there is the hope that four of the teenagers will be attending some form of secondary education. Mrs Cash is anxious that her children have an opportunity to gain the knowledge and literary skills she did not receive. I understand her sisters are of like mind. Whatever the reasons for failing to take up education while at Thingley, I consider the more relevant point is that efforts are now being made to provide the children with the chance to gain confidence to progress through school [7.8-7.10, 9.5]. 12.59 All the family have a history of health problems affecting both the adults and children. On occasions emergency medical care has been sought, hospital treatment is required and Josephine’s son John needs constant care. Josephine herself has an operation pending. Regular attendance at the medical centre is possible and for the extended family there are clear advantages of having a stable base. If moved elsewhere re-establishment of provision could be difficult lengthy and stressful, considerations which came across clearly through the expert evidence of Mrs Spring and Miss Rhodes [7.2 8-7.30]. 12.60 I consider that the personal circumstances of the group are a strong factor in support of their continued presence on the site, particularly within the context of the Government’s commitment to promoting personal wellbeing and social inclusion and reducing inequalities as expressed in PPS1. However it is also relevant that the expert witnesses have confirmed the needs of the families are not out of the ordinary. There are no special medical or educational requirements which could not be met elsewhere [8.21, 9.5]. In addition the requirement to access health and educational services follows from the decision to move and take up unauthorised occupation. Whilst the fact that a development is unauthorised is not normally material to the planning merits of a proposal, an important part of the Appellants case is that hardship would result from the disruption to health and education [7.37, 8.25]. ”

[38]The Inspector then went on to consider the rights of the Appellants under

Article 8 of the European Convention

of Human Rights. She considered the family group’s rights to respect for private and family life and their home were at issue. Nobody has suggested otherwise. She noted that while there was no enforcement notice in place, the Council had made plain its intention to take enforcement action swiftly. The Inspector concluded that under such circumstances dismissal of the appeal would indirectly lead to the loss of their home, serious disruption to their way of life and therefore an interference with their rights under Article 8. She then expressed herself as follows:

“12.64 A temporary permission is now being sought for a period of three years to enable the Council to reconsider its policy and to enable a site to be provided for the family. The Appellants argue that the objectives of the development, the provision of a home for the families, may be achieved in a less intrusive way by the Council providing a site elsewhere. The predicament of the Appellants is placed within the contexts of the Council’s failure to fulfil its obligations in respect of gypsy accommodation and its corporate policy not to provide sites for gypsy and other campers [7.36, 7.37].”

[39]While noting that Article 8 does not give a right to be provided with a home (See Chapman v UK (Application 27238/95),

[2001] 33 EHRR 18

) she noted that the Council and adjacent local authorities had a positive duty (by which she meant in accordance with the Chapman case) to facilitate a gypsy way of life and to date they had failed to make adequate provision for this minority community. But in the circumstances she considered that to stipulate that the minimum interference required the Council to provide a site would encourage illegal action by others to the detriment of the protection of the environmental rights of the community.

[40]She then said the following:

“12.66 The history of unauthorised uses and the length of time they were suffered is not a sound justification for allowing the development for a temporary period [7.3]. Permission for a period of three years would result in the prolonged continuation of the substantial environmental harm and risks to public safety. These matters are not capable of being overcome by condition. I also consider that allowing for due process and compliance periods with any enforcement notice there could be a period of two years before the extended family would have to leave the site [9.13]. There are other legal measures open to the Council, but in seeking to exercise those powers again due process and statutory obligations would have to be observed. In my view a lay-by existence would not be an immediate consequence if the appeal were to be dismissed. ”

[41]She concluded that the matters supporting the proposal did not individually or cumulatively clearly outweigh the very substantial harm to the green belt landscape character, highway safety and other environmental concerns. Very special circumstances did not exist to justify allowing the development which would be contrary to national policy and to the emerging local government plan. She concluded that the legitimate aims of promoting public safety and the economic wellbeing of the country could only be adequately safeguarded by dismissal of the appeal, which she considered to be both necessary and proportionate.

THE DECISION THE FIRST SECRETARY OF STATE

[42]In his decision letter the First Secretary of State agreed substantially with the reasons of the Inspector. In reaching his conclusion he stated that he took into account, amongst other matters, the consultation draft of the revised Circular 1/94 issued in December 2004. But he stated that as it was still at consultation stage he gave it limited weight. That is a reference to the draft of what became Circular 1/06. He too took into consideration the lack of a soundly based development plan framework to guide gypsy site provision and that no quantitative assessment of the housing needs of the gypsy community had been carried out. He agreed that the site occupiers were a vulnerable group. He agreed that the lack of a development plan framework for the provision of adequate gypsy accommodation, the unmet need, as well as the Appellants’ particular needs for a site, were all material considerations which lend some support to their case. But he also agreed that the matters supporting the proposal did not individually or cumulatively clearly outweigh the harm by reason of the inappropriateness and other identified harm to the green belt and did not justify the granting of planning permission. He noted this in particular in relation to the fact that what was being sought was a temporary permission for a period of three years.

NEW PLANNING DEVELOPMENTS

[43]In addition to the introduction of Circular 1/06 and the fresh appeal there have been other developments since the Inspector’s report and the First Secretary of State’s decision letter. There have been changes in the personal circumstances of the Defendants and their families to which I will refer below. There has been the procuring of the expert evidence from Mr Baker to which I shall also refer below.

[44]The current position in Bath and North East Somerset is that the emerging Local Plan is to proceed under the old planning system. The Local Plan Inspector’s report has been published and recommendations will be considered by the Claimant who can then either accept the recommendations or publish proposed modifications to the Plan. Any such modifications will be subject to further public consultation and in the case of sensitive or contentious issues may require a further inquiry to hear objections to the modifications. The Claimant anticipates adoption of the Local Plan by mid 2007, following which, the policies will be ‘saved’ for a period of three years whilst the Claimant prepares its Local Development Framework. I take this from the first witness statement of Mr Cox, the expert for these Defendants, whose witness statement was admitted by permission of Silber J given in April 2006. Having accepted Mr Langham’s submission that there should be no cross-examination upon this (as Mr Willers asked that there should be), I assume this evidence to be correct as to matters of fact.

[45]In November 2004 and January 2005 officers of the Claimant met with representatives of adjoining authorities to discuss the possibility of a joint quantitative assessment. It appeared from the draft of what is now Circular 1/06, which was issued in December 2004 that the Government was intending that the overall level of provision should be established at a regional level. At these meetings the four relevant authorities, BANES, South Gloucestershire, Bristol and North Somerset, agreed to take a joint approach and set up a working party to pursue the quantitative assessment. But they decided not to start the assessment until the guidance became available.As already stated these assessments are now known as GTAAs.

[46]In the Claimant’s view, the position with regard to the GTAA is as follows. Reliance on the sixth monthly caravan counts alone is not considered to be acceptable. The four authorities have been asked to do a desktop study to gather all the existing information on gypsies and travellers held within each authority. The results of this require to be collated before being submitted to the South West Regional Assembly (“SWRA”) and are unlikely to be made publicly available prior to such submission. It is intended that the desktop study will provide the foundation for the full GTAA. It is expected that the GTAA will take three months to complete and that it will take place during the summer. It is anticipated that a report containing the results of the GTAA will be submitted to the SWRA by the end of 2006. There will be interviews with gypsies in the relevant area. The interviewing process has not yet started but preparatory work has.

[47]As already noted, gypsy groups objected to the version of HG.16 in the Revised Deposit Draft of the Local Plan at the inquiry. The objection was heard in May 2005. The Local Plan Inspector produced the final version of her report and it was published on 17th May 2006, just over a month ago. Mr Majer, whose witness statement deals with these matters, observes that it is evident that the part of the report dealing with HG.16 was written before the publication of Circular 1/06.

[48]The relevant part of the May 2006 Local Plan Inspector’s Report criticises the failures of the Claimant. It includes the following:

“5.326… In the absence of a strategic policy I agree with the Council that it is the advice as set out in Circular 1/94 which should be followed, having regard to the consultation draft “Planning for Gypsy and Travellers Sites” published in December 2004. Avon Travellers Support Group criticised the advice in Circular 1/94 but until there is a replacement that is the policy to which due weight should be given. … 5.328 A housing needs study was carried out in 2000 which considered the special needs of some groups such as the elderly, disabled and the homeless, but no specific assessment of the needs of gypsies and travellers. From the bi-annual gypsy caravan counts the records of unauthorised encampments and the submission of very few planning applications, the Council concludes that there is little demand for permanent or transitory sites. However, these sources have been heavily criticised and there has been no consultation with the gypsy community or research into records to verify the Council’s conclusions. The Council now admits that an assessment should be carried out, but it is clear that the council has failed to comply with national guidance and the needs of gypsies have not been subject to the same level of assessment as those of other groups who require accommodation. 5.329 A resolution was taken by B&NES in July 2004 to carry out a full assessment with the assessment ready for presentation at the Local Plan Inquiry. However, the assessment has not been carried out, and there is no programme for the work required. The Council indicated that they were waiting for guidance before undertaking such an assessment, and clearly it is too late for an assessment to inform this Local Plan which with the preparation of a LDF under the new system, is likely to have a limited lifespan. Nevertheless, I consider that the Council should delay no further in undertaking their assessment in order to properly inform a future housing DPD. The assessment could if necessary be modified to take into account any changes required in response to advice which has yet to be issued. 5.330 Examples were given to me of gypsy families in need within the District, in particular four homeless families with twenty children. [I interpose to say that it was common ground between Mr Langham and Mr Willers that that is a reference to the Defendants in this action.] Furthermore it was stated that gypsies know it is easier to find sites elsewhere so tend not to try to settle in B&NES. I do not therefore accept the Council’s view that there is no need to provide permanent or transitory sites for gypsies. A proper assessment of need is urgently required to assess the scale of the need and where it might best be met. This will be required to inform the LDF and ensure that provision is made through a locational policy. The locations most favoured by gypsies in the District are generally highly constrained by the Green Belt and AONB but in these circumstances it is even more important for the Council to provide the lead in identifying suitable sites for location. If there is a need for a site within the area constrained by Green Belt, provision should be made through the plan making process for either a limited alteration to the defined Green Belt boundary or to inset a suitable site within the Green Belt. 5.331 Three sites were put forward as having potential to accommodate gypsies. The sites are council owned and subject to a number of constraints including Green Belt. However, having visited the sites I consider that land to the rear of the Newbridge Park and Ride should be investigated further. The site is within the Green Belt and would therefore need to be considered for removal as part of the Green Belt around Bath in the preparation of the LDF. Access would need to be through the existing Park and Ride, but I see no reason why any conflict between the two uses could not be resolved. The site is well contained within the landscape, and has good access to local shops, schools and medical facilities. It is also well served by public transport, has good accessibility to the A4 Ring Road, and would be easy to locate. 5.332 I do not have sufficient evidence on which to make a judgment as to whether this is the most suitable site or the scale of the site which should be allocated, but must reluctantly take the view that the adoption of this Local Plan should not be delayed by further work on this matter. I accept that this is a most unsatisfactory situation, but the work will need to be carried out as part of the preparation of the LDF.”

[49]The Local Plan Inspector then recommended a re-worded policy HG.16 bearing in mind that any proposal would be subject to all the other policies of the plan and having taken into account the advice in the draft Circular. The Policy HG.16, as recommended by the Inspector would read as follows:

“Proposals to provide sites, including mixed use sites, for use by gypsies who reside in or resort to Bath & NE Somerset will be permitted on land outside the scope of policies GDS.1 and HG.4 provided that: i. the site has good access to local services, facilities and public transport; ii it has safe and convenient access to the road network; iii it is capable of being landscaped to ensure that it blends in with its surroundings; iii adequate services including foul and surface water drainage and waste disposal can be provided; iv there would be no harmful impact on the amenities of local residents by reason of noise or fumes from business activities. ” i. the site has good access to local services, facilities and public transport; ii it has safe and convenient access to the road network; iii it is capable of being landscaped to ensure that it blends in with its surroundings; iii adequate services including foul and surface water drainage and waste disposal can be provided; iv there would be no harmful impact on the amenities of local residents by reason of noise or fumes from business activities. ”

[50]Mr Majer states that officers were preparing to report the recommendations of the Local Plan Inspector to the Council Executive on 7th June (that is two weeks before the hearing), 12th July and 6th September 2006 and to the full Council in September/October 2006. The Council is proceeding with the joint GTAA, in the manner advised by the Inspector. He goes on to say this:

“33. Although no formal decision has yet been taken by Councillors, I think that it is more or less inevitable that further investigation will be made of the Newbridge Park and Ride site, to assess its suitability for allocation as a gypsy site. I am sure that the Council will take the view that, while the precise level of provision required to be made in the district will have to await the imposition of a quota in the RSS, it would be prudent to consider this site in the meantime, given the Inspector’s comments….”

[51]Mr Majer notes that the regime of the Planning and Compulsory Purchase Act 2004 provides for RSSs to be formulated by the regional authority which in this instance is SWRA. This covers the whole of the South West of England from Bournemouth and Cheltenham to Cornwall. Work on the RSS is underway. In April 2006 the SWRA published a draft RSS. This includes the following, under the heading “Provision for Gypsies and Travellers: Transition Arrangements”. There is a reference to Circular 1/06 and then the following:

“6.1.13… At the time of publication of the Draft RSS, the RPB was of the view that there was not sufficiently robust information on which to establish district level pitch numbers. As such, in line with the Circular, it is necessary to set out transitional arrangements that are appropriate to the regional context before setting in train a single issue early review of the Draft RSS to fully implement the Government’s requirements. 6.1.14 For the South West this regional context can be summarised as follows: - the extent of existing provision in the region is approximately 550 pitches; - the following parts of the region have relatively high numbers of unauthorised sites: South Gloucestershire, City of Bristol and North Somerset Unitary Authority areas, and parts of Devon, Gloucestershire and Dorset counties; and - an interim estimate of the additional pitch requirements at regional level is about 1,100 pitches which will be used to monitor delivery in LDDs.”

[52]There are a number of footnotes including one to the figure 1,100 pitches. It notes that that figure is based on First Detailed Proposals (draft Needs Assessments) from a number of authorities which do not include the Claimant. For authorities, such as the Claimant, who did not submit First Detailed Proposals the figure is based on Caravan Count Data for January 2005. The document continues stating that it is anticipated that all Local Authorities in the region will have completed their GTAAs in 2007, and it is hoped a single issue review of the Draft RSS can be completed in step with this. Mr Majer states that it is the intention that the SWRA will have the results of the joint GTAAs covering BANES by the end of 2006. He states that in his opinion it is inconceivable that even if the GTAA establishes that sites need to be allocated in the district, that the Land will be allocated, given the strength of the objections identified by the Inspector in April 2005 and the Secretary of State.

[53]The expert for the Defendants, Mr Cox, also comments on these documents. He notes that if those at present on the appeal site are evicted and forced back on to travelling “on the road” or to move outside the area, there is a real risk that they will not be interviewed as part of the GTAA and that their needs and aspirations will not be recorded. He suggests that on the basis of the additional pitch requirement stated in the draft RSS at 1,100 pitches, it is likely that even those local authorities with low levels with unauthorised incursions will be required to make an appropriate level of provision in order to meet the identified wider regional need.

FRESH EVIDENCE ON THE HIGHWAY SAFETY ISSUE

[54]I turn now to the fresh evidence in relation to the highway safety issue. The witness statement of Mr Baker BSc (Hons) CENG MICE FCIT FILT Eur Ing covers some twenty pages including annexed tables and photographs. He has great experience in the field of transportation and traffic engineering since 1978. The Order of Silber J in April left open how the expert evidence of Mr Baker should be admitted. Mr Willers submitted that the evidence should be heard orally and subject to cross examination. He submitted that in the context of the claim for an injunction which would have the effect of forcing the Defendants to leave land which they occupy as their home, for the court to act on evidence which is challenged without affording the Defendants the opportunity to test that evidence by cross-examination would not be right, and would be in breach of the procedural safeguards guaranteed by article 6 and 8 of the Convention. However, he noted that the Defendants’ aim is to convince the Court that that planning appeal has a realistic prospect of success, not that the Secretary of State was wrong in his decision letter of June 2005.

[55]For the Claimant Mr Langham submitted that I should not hear oral evidence. He drew my attention to the decision of the Court of Appeal given on 27th April this year in Wychavon District Council v Rafferty

[2006] EWCA Civ 628

. Sir Andrew Morritt C gave the main judgment in that case. Tuckey and Peter Gibson LJJ agreed. Tuckey LJ, with whom Peter Gibson LJ agreed on this point, added the following: “66. But I should like to make an observation on what we have been told is the practice of some judges in these gypsy cases. This is that witnesses should be called and cross-examined on planning issues to enable the judge to form a better view of the prospect of success of outstanding planning applications or appeals. I do not think this is appropriate. Nothing which was said in the passages cited by the Chancellor from South BucksDistrict Council v Porter suggests that this is what the courts should do. Indeed, Lord Hutton at paragraph 92 and Lord Scott at paragraph 100 suggest that the court should not do so. Such a course is I think unnecessary to enable the court to form a broad view of planning prospects, which it can and should do from the papers in the same way that the court so often has to do about other contested issues in interim injunction proceedings”.

[56]Mr Willers submitted that that passage was obiter and not in accordance with the judgment of Lord Bingham of Cornhill in Porter at para 30 F where he said:

“… nor need the court refuse to consider (pace Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed as the cases of Mr Berry and Mrs Porter shows. But all will depend on the particular facts, and the court must always, act on evidence. ”

[57]I cannot accept this submission. Evidence includes a witness statement which has not been the subject of oral evidence or cross-examination. Lord Bingham cannot be said to be expressing the view that there should be oral evidence and cross-examination in cases such as this.

[58]Although it is Mr Willers who submitted that I should hear oral evidence and Mr Langham who submitted that I should not, it does not appear to me that a refusal to hear oral evidence would be disadvantageous to the Defendants. On the contrary, if I do not hear oral evidence, then I approach the evidence of Mr Baker without having formed any view of the criticisms made of it by Mr Hogan.

[59]This hearing was estimated for a period of two to three days. In the event it was completed in less than two days. If I were to have heard oral evidence it would, I think, have been very likely that that would have occupied something more than half a day. I took the view that it was neither necessary nor proportionate for me to hear that evidence orally or permit cross-examination.

[60]It will be recalled that the Land has access to the A46 along a road which also serves a small number of dwellings. At that point the A46 is a two lane highway and the junction is with the A46 at a point midway into an S bend. The major safety considerations therefore include the extent to which a driver on the access road at the junction can see when it is safe to pull out onto the A46 and the extent to which the drivers on the A46 can see a driver on the access road intending to pull out. In addition a driver on the A46 wishing to turn right into the access road will have to wait in the opposite lane of the A46 while the traffic coming towards him goes past in order to have an opportunity to cross the carriageway safely on his way into the access road. It is therefore important that cars coming up behind him should have good visibility of the fact that he has stopped.

[61]Mr Baker did not give evidence at the inquiry in 2005. Evidence was given on behalf of the Claimant by Mr Hogan. Mr Baker expresses his conclusions as follows:

“My conclusions will be that although the access is substandard, it is not so bad as to be unsuitable to accommodate the modest amount of traffic attracted to and generated by the Defendants’ occupation of the land, and as such there is no harm in it continuing to serve the Defendants’ land on an ongoing temporary basis.”

[62]He calculates that the presence of the residents on the appeal site generates an additional 28 to 40 vehicles per day on a road carrying 17-20,000 vehicles per day. He comments that this is a de minimis level of increase at 0.2% which he states is well within the daily and seasonal variation of traffic. The main point of difference between himself and Mr Hogan is in relation to the speed data. Obviously, the faster vehicles are travelling along the A46 the longer the distance which will be require over which the drivers can see, and be seen by, drivers of vehicles seeking to leave the access road or to turn off the A46 onto the access road.

[63]There is a difference of opinion between Mr Baker and Mr Hogan as to the appropriate point at which to measure the relevant speed. However, Mr Baker summarises his opinion on this aspect of the matter by saying: “Whilst I accept that the visibility to the left and right is below that required by the posted speed limit, I consider that it is adequate based on observed speeds, and typical breaking/thinking distances. It is not so bad, in my opinion, as to be unacceptable for the Defendants continues temporary use”.

[64]Upon receipt of Mr Baker’s witness statement, Mr Hogan reconsidered his own position. He remained of the view he had expressed to the inquiry in 2005. In summary: “The visibility at the access is significantly substandard, an increase in the use of the access could increase the risk of accidents and it would not be acceptable to grant even temporary planning permission for the development”.

[65]The two experts met and prepared an agreed statement on 24th May 2006. Although they agreed on much of the technical data, their conclusions remained different. They also agreed on the updated accident details on the basis of data available to December 2005. This shows that within a 200 metre radius of the access to Hartley Farm there have been seven slight injury accidents and two serious injury accidents. None of these accidents has been caused by the operation of the junction but instead have occurred largely as a result of the tortuous nature of the A46 past the site access.

THE DEFENDANTS’ PERSONAL CIRCUMSTANCES

[66]I turn now to the further information that needs to be recorded in relation to the Defendants’ personal circumstances, in addition to that already set out at para 37 above. The First Defendant and the son of the Seventh Defendant are both in receipt of Disability Living Allowance. The condition of the First Defendant’s daughter K is of particular concern. She has been admitted to hospital suffering from encephalitis. The Fourth Defendant cares for Mr Andrews, who has at his request been joined as a Defendant to these proceedings. The Fourth Defendant’s daughter remains under the care of a consultant at the Royal United Hospital for the consequences of an injury suffered in an accident when she was five years old. Her sister suffers from kidney problems and her two year old little brother from asthma. On 10th April 2005 the Seventh Defendant underwent a nephrectomy to remove her right kidney. She remains symptomatic and is under the care of a consultant urologist. Her son J, who suffers from attention deficit hypo-activity disorder, is under the care of a behavioural specialist and is awaiting treatment.

THE DECISION TO BRING THESE PROCEEDINGS

[67]On 26th October 2005 a motion was put to Development Control Committee B (“the Committee”) of the Council to decide whether to seek this injunction. For this purpose there was available to Councillors an open public report together with some confidential annexes. Speaking in support of the motion Councillor Kew referred to the report and to the options discussed in it. He then turned to the possibility of seeking an injunction and made the following statement:

“I have accordingly considered whether it is appropriate to seek an injunction bearing in mind the law as outlined in the report. I have decided that it is. I have concluded that the arguments in favour of seeking an injunction outweigh those against it in view of the foregoing. In coming to this conclusion, I have particularly borne in mind the results of the assessments undertaken by the Council in pursuance of its duties as social services authority, education authority, under the Children Act 2004 and pursuant to its responsibilities to the homeless or potentially homeless. I note there is no suggestion in principle that the needs of those on the sites cannot be met with the co-operation of the relevant statutory agencies and authorities and those on the site themselves over a sensible and reasonable period. In the light of the information before me, I consider such a period to be three months, noting as I do that a period within which the occupants will be asked to move is a matter which is very much within the discretion of the Court when the injunction application is heard and will undoubtedly be reviewed at that time”

[68]The motion was duly carried. There is no other explanation for the period of three months sought in the draft order. It is what Councillor Kew referred to as a sensible and reasonable period within which he understood that the needs of those on the Land could be met with the co-operation of the relevant statutory agencies and authorities and those on the Land themselves.

[69]The report referred to in the minutes of the meeting of 26th October is itself a substantial document. It covers some 27 pages of the bundle before me. It adopts a position towards the draft Circular which is similar to that adopted by the First Secretary of State. Paragraph 7.1 reads as follows:

“Regard has also to be had to relevant Central Government Advice concerning provision for Gypsies, particularly Circular 1/94, referred to above and Circular 18/94 “Gypsy Sites Policy and Unauthorised Camping”

. Regard, although more limited, has also to be had to the recently published consultation draft of the new Circular “Planning for Gypsies and Traveller Sites” which will replace the current Circular 1/94. Copies of these documents are in Appendix 9”.

[70]The report acknowledges that there was no site provision currently available for gypsies in this district. It records that in the context of the Local Plan process the Council agreed in July 2004 that an assessment of need for Gypsy accommodation should be undertaken. It states that if agreed, it is anticipated that the assessments could begin early in the new year to coincide with the January 2006 gypsy and traveller caravan count.

[71]There follows a discussion of the movements of the various individuals on and off the site during the summer and autumn months. In considering the various options the report states as follows: “Injunction under Section 187B of the 1990 Act “The Council has to be satisfied, that having regard to all the circumstances, it is necessary or expedient for the breach of planning control to be restrained. It may then apply to the Court for an order requiring the occupiers to vacate the land by a certain date. The Court has a wide discretion as to whether or not to grant an injunction and the Court will balance the competing issues. Time scales will depend on the Court’s diary and representations from the occupant’s representatives. It may, however, be possible for a hearing to take place between two to three months of proceedings being issued. In the event of an injunction being resisted by the occupants the Court may decide in the event of them granting an injunction to suspend it coming into effect”.

[72]The report then continued as follows:

“14.8 Although not directly endorsed by the Secretary of State in his decision letter, in considering what action the Council would be likely to take in the event of the appeal being dismissed the Inspector concluded in paragraph 9.13 of her report [which is then set out, and is as appears at para 28 above]. And also in paragraph 12.66 she said: [and this is then set out, and is as appears at para 40 above].”

[73]It may not be entirely accurate to have stated that paragraph 9.13 of the Inspector’s report is what she concluded. That section of the report is, as already stated, part of the case for the Residents. However, para 12.66 is part of the Inspector’s own conclusions and it does refer back to paragraph 9.13. It is certainly a fair reading, and in my judgment it is probably the correct reading of the Inspector’s conclusions, that she was adopting what the Residents said in paragraph 9.13 as part of her own conclusion. In any event that is certainly the basis upon which the Council was invited to consider a resolution.

[74]The report is that of the Head of Planning Services, but the Report Originator is identified as Mr Majer, who has given witness statements in this case. Attached to the report are two Confidential Appendices, one headed Meeting Date 19th October 2005, and one headed Meeting Date 26th October 2005. These documents provide summaries of the contacts and initial assessments undertaken of children and young people currently resident on the appeal site. These contacts and initial assessments were undertaken by the Children and Families Referral and Assessment Team Social Workers following a referral from Bath and North East Somerset’s Planning Services. The assessments were informed by the children young people and their parents.

[75]In the report dated 26th October 2005 it is recorded that with the exception of one teenage boy who was not available during visits, but whose circumstances had been discussed with his mother, all children and young people had been seen and initial assessments completed. It is also recorded that assessments of the health and care needs of the adults were currently being undertaken by Adult Social Services as community care assessments. In the final paragraph of the report bearing the earlier date it is recorded that “if these families were evicted, it is clear they could not go back to the site in Chippenham and they have not been able to identify anywhere else they could go other than back on the road. Assessments would be required of the impact upon the children.”

[76]Both annexes also include the statement: “It seems from our assessment so far, that the children’s medical and educational needs are being met within their current medical arrangements. If the families were to be evicted, there would have to be careful consideration given as to how this would impact on their health needs and their mothers ability to access health care”.

[77]It appears from the foregoing that, in passing the resolution that this injunction be sought, the Councillors were not invited to, and did not, contemplate that the families would actually be evicted without further consideration as to whether and if so how their medical and educational needs were to be met. The timescale which the Councillors were invited to consider was the period of two to three months which it was stated might be the possible time within which a hearing might take place after the proceedings were issued. In addition there is the three month period provided for in the order. In the event the proceedings were issued in mid December 2005 and the hearing has taken place six months later. If I make an order in the form sought it will add a further three months. The order would then take effect in October 2006. It is to be noted that that is some eighteen months after the Inspector delivered her report in April 2005.

[78]At the hearing on 11th January 2006 Newman J was informed of the fact that the Defendants were considering lodging an application for judicial review of the Claimant’s decision to seek injunctive relief. They did in fact on 23rd January 2006 issue judicial review proceedings. In the judicial review Claim Form these Defendants sought to challenge the decision of 26th October 2005 on the ground that it was unlawful and amounted to an unjustified interference with their rights protected by Article 8. They complained that the Claimant had failed to take account of the “General Race Equality Duty” laid down by Section 71 (1) of the Race Relations Act 1976 (as amended) before deciding to institute proceedings, namely the requirement that: “(1) Every [local authority] shall in carrying out its functions have due regard for the need – (a) to eliminate unlawful discrimination, and (b) to promote equality of opportunity and good relations between persons of different racial groups”.

[79]A further report was prepared for the Claimant upon the matters raised in the Judicial Review Claim Form and a further resolution was put. The Committee again resolved to continue with the present proceedings. On 22nd February 2006 the Defendants decided not to pursue the application for judicial review. But on the same day, before this decision could be communicated to him, Hughes J (as he then was) refused permission for an application for Judicial Review. He observed:

“The grant of an injunction is a discretionary remedy. It is open to the Claimants to advance in the injunction proceedings each of the arguments here relied upon, if they have substance. And see South Bucks DC v. Porter.”

[80]The Defendants have not sought to resurrect the “general race equality” point before me.

[81]On 21st March 2006 solicitors for the Defendants invited the Claimant to accede to a proposal whereby these Defendants agreed to an injunction being made by consent subject to the proviso that its terms are suspended pending the determination of their application for temporary planning permission by the Claimant authority and if the application is refused, pending the determination of an appeal by the Secretary of State against that refusal. A further report was prepared for the Councillors. It invited them to consider that proposal, and to consider Circular 1/06 which by then had become available. The Committee considered the contents of the report and appendices and resolved to continue with these proceedings.

DEVELOPMENTS SINCE MID 2005 AND THE FRESH APPEAL

[82]I turn now to consider the possible impact of developments since mid 2005 upon the prospects of these Defendants succeeding in their fresh appeal.

[83]First there is the matter of the personal circumstances of these Defendants and their children. Their medical needs have not decreased. They have increased. However, they were sufficiently serious in the view of the Inspector in April 2005 that I do not regard the adverse developments since then as materially affecting the position. These needs are serious. They can only be met from a relatively permanent location. That location does not have to be the Land, but no one is suggesting they can be met if the individuals concerned are living what has been referred to as a lay-by existence. These matters do not give rise to a prospect of success on a fresh appeal.

[84]Next I consider the evidence of Mr Baker. This goes to the question of highway safety. There is no doubt that the issue of highway safety was an important issue in the mind of the Inspector, and the Secretary of State. There are two important points as it seems to me. First highway safety was by no means the only important point (see the summary of the Inspector’s conclusions at paras 30 and following above). Secondly taken at its highest, Mr Baker’s evidence is not that the highway is safe for the users of the A46 and the access road so long as these Defendants and their children are resident at the appeal site. It is common ground that the junction is sub-standard. The issue, such as it is, is how unsafe the highway and access road are. It appears to me that the difference between Mr Baker and the view taken by the Inspector on the basis of the Claimant’s evidence, is a difference that may well be within the range of views that reasonable people will take. I do not say that it is impossible that the Inspector at the fresh appeal should adopt Mr Bakers view. But I do not feel able to express the view that there is a realistic prospect of that occurring.

[85]In my judgment whatever prospects of success these Defendants may have in their fresh appeal must depend on the transitional arrangements in Circular 1/06, whether taken alone, or in conjunction with information on other developments that may be or become available in relation to possible alternative sites. Some information has become available, as noted above in relation to Newbridge Park and Ride site, and the evidence as to what is being and what is to be done in relation to the GTAA in particular and the new planning process in general. Given the recent appearance this year of Circular 1/06 it is not surprising that there is little in the way of authority to guide me as to the impact of the Circular on a case such as this. The case of Price cited above concerned a Defendant who had defied an enforcement notice for four years and an injunction for ten months. Unlike the Defendants in this case he was not present or represented at the hearing at which the injunction had been granted. He was facing committal proceedings for his non compliance with the injunction. The court in that case did not need to address the situation which prevails here, namely where a local authority is applying for an injunction for the first time.

THE EFFECT OF CIRCULAR 1/06 ON FRESH APPEALS

[86]Mr Willers referred me to an appeal decision by Mr David Rusdale BA Dip TPMRTI, an inspector appointed by the First Secretary of State in respect of land referred to as Riverside Drove, Bartletts Bridge, Cocklake, Wedmore. The decision letter is dated 28th February 2006, and was made following an inquiry which took place over three days in January 2006. The letter notes that since the close of the inquiry Circular 1/06 had been released. So far as that appeal was concerned, the Riverside Drove Inspector stated that there were no significant changes between the Circular as published and the draft Circular and he did not go back to the parties for further comment. He did not address the transitional provisions to which that observation would have applied referring only to paragraph 64 of the Circular. Mr Rusdale considered that the appeal development did have an unacceptable visual impact and conflicted with LPB policy H34. He also found that there was an unmet need for gypsy sites in the district and no alternative site to which the Appellants in that case could move if the appeals were dismissed. He recognised that they might have to stay on the roadside and the education and healthcare benefits of a settled base might be lost. The facts might be very different indeed both as to the unacceptability of the appeal development and as to the gravity of the personal circumstances of the Appellant, as compared with the facts of the present case. Nevertheless he concluded in his case that the other circumstance did not outweigh the harmful visual impact of the development.

[87]It appears therefore that he would have dismissed the appeal but for the Circular 1/06. As to that he said:

“34. However, the Council has started work on its Local Development Framework (LDF) in which it will have to allocate sites for additional gypsy sites based on a quantitative assessment of the need. The Draft ArkConsultancy Report being the first stage of this. There is the possibility that the appeal site may be considered as being an acceptable location for the purposes of the LDF, having regard to the impact of the other potential sites and their suitability/availability to gypsies. Even if it is not, identification of sites that are acceptable will give the Appellants the opportunity to pursue these as an alternative to their present site. Given the absence of any alternative site at the present time the consequences for the families of having to leave the appeal site within the immediate future, I consider a temporary planning permission is justified on the basis that the visual harm to the appearance of the countryside will be short lived. In terms of the appropriate period for this, the Council stated that its preferred option for allocated sites was programmed to be submitted to the Secretary of State in November 2007. On this basis, the LDF is unlikely to be adopted within two years of the date of this decision. Consequently, I consider that three years would be an appropriate period for a temporary permission not two years as suggested at the inquiry. To the extent that a temporary planning permission will be granted, the Section 78 appeal succeeds.”

[88]Given the fact that no submissions could be made to Mr Rusdale on Circular 1/06, and given the very different character of the appeal site in question in that appeal, reference to this decision letter does not take the matter very far.

[89]Mr Willers also referred me to the decision given on 23rd February 2006 by David Clarke J in South Bucks District Council v. Smith

[2006] EWHC 281 (QB)

. In his skeleton argument he put it this way. In that case David Clarke J took account of the advice in paras 45 and 46 of Circular 1/06 and having done so concluded that it would be disproportionate to force a gypsy family to leave their site that was situated in the Green Belt and they had occupied in breach of planning control for thirty two years (despite having been subject to prosecution and injunction proceedings on a number of occasions) when there was a real chance that they might obtain temporary planning permission following the determination of a fresh planning application lodged on 7th February, that is five days after the issue of the new Circular.

[90]The Judge made clear that but for the new Circular he would have held that the Defendants had reached the end of the road. He said this:

“40. I cannot say how strong is the Defendants’ prospect of planning permission being eventually obtained. I am expressly not making a planning decision myself. My task is to exercise the discretion whether to grant an injunction, and if so on what terms. Whereas I am satisfied that but for the planning situation an injunction should be granted, I am persuaded that it should not take effect until the fresh planning application is finally disposed of, including any appeal against refusal by the council….. 46. As I say, but for the recent developments [namely the issue of Circular 1/06 and the fresh application for planning permission, referred to in para 31] I would have struck this balance in favour of the council, granting the injunction but allowing a reasonable time for compliance; Mr Birds [who appeared for the Council] proposed six months which seemed a reasonable period for the Defendants to make alternative arrangements. But so long as there remains a real not a good chance that they may in due course obtain planning permission (even if only temporary or personal) pursuant to their current application, in my judgment the balance swings the other way. 47. I cannot see the need to remove the caravans from the site as so urgent and pressing, now after all these years, as to require it to proceed in advance of that final determination of the planning permission application. The removal of the residential caravans and prohibition from living on the site will bear heavily on the Defendants and their families. As a matter of fact they have at present no alternative site to go to. Even when it occurs, they will continue to run their business on the site, visiting the site regularly for the purpose. …”

[91]It is the facts set out in paragraph 47 which appeared to have been critical to that decision. David Clarke J did not in the light of these facts, have to consider in more detail than he did the effect of the transitional arrangements in the new Circular.

[92]Mr Langham submits that I should approach the matter in the same way as Silber J approached the case of South Cambridge District Council v. Flynn

[2006] EWHC 1320 (QB)

. That judgment was given as recently as 7th June 2006. Silber J gave detailed consideration to the new Circular as follows: “119. On the issue of the temporary planning permission, the starting point must be the exact terms used in Porter (supra) in considering when the prospects of a future planning permission are discussed and they were (with my emphasis added) that: ” "… the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case " (Simon Brown LJ at paragraph 40) " Nor need the court refuse to consider… the possibility that a pending or prospective application for planning permission may succeed since there may be material to suggest that a party previously unsuccessful may yet succeed … " (Lord Bingham at paragraph 30)" If the court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the Defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation had become clarified. But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction without regard to the merits of the planning decisions " (Lord Scott at paragraph 100).120. I agree with Mr. Langham that a "real prospect" of success is required before the adjournment/suspension route could be appropriate so as to militate against the Claimants being entitled to the relief now claimed. The ' possibility' of success is merely a consideration that the court " need [not] refuse to consider" in the sense that it is something that merits consideration.121. In my view, these new provisions mean that local planning authorities ought now to be less reluctant to grant temporary planning permission than they would have been previously. This is an important factor to bear in mind, as I will do, when considering as I have to whether to grant section 187B relief. Nevertheless, these new provisions do not enable me to conclude in this case that there is a " real prospect of success" because the Defendants are putting forward essentially the same case in support of their claim for temporary planning permission as had been recently decisively rejected by the Inspector for cogent and persuasive reasons in his report and subsequently by the First Secretary of State. 122. Second, this was a case in which there were important findings made by the Inspector upheld by the First Secretary of State about the continued use of the site by the Defendants….124. Third, there is nothing in the 2006 Circular which alters the critically important planning judgment made in this case by the Inspector and the upheld by the First Secretary of State about the severe harm to the landscape and amenity as well as the consequent breach of development plan and policy HG 23 caused by the present development. These specialist decision makers had considered this to be overwhelming and decisive in spite of the countervailing factors such as first that there had been a lack of qualitative assessment, second that there were no immediate available alternatives, third that the Defendants and their families would have the very difficult task of having to find alternative homes and fourth that the Council was assessing need and trying to find alternative sites so that in the fullness of time there would be more facilities available for gypsies. In this respect, it must not be forgotten that the Inspector and the First Secretary of State made potent conclusions not merely that they would not permit planning permission for one plot but also that no temporary planning permission was to be granted.

125. Fourth, there is nothing in the 2006 circular which requires or suggests that gypsy sites should be permitted in places where there is the level of injury to the amenities found by the Inspector. It is true that this circular requires local planning authorities to allocate or allow for an adequate number of sites in suitable locations but it is a feature of the new scheme that the these authorities would be able to enforce their policies so as to take effective enforcement action against unlawful sites in unsuitable locations. An important feature of the 2006 circular is that it gives advice and guidance to local planning authorities on how they should formulate their planning policies and then grant or refuse permission.

126. Fifth, the existing guidance in C11/95 on temporary planning permissions is still in force and, as I have explained is specifically referred to in paragraph 45 of the 2006 Circular and it provides that an activity which causes unacceptable harm to an amenity should not be allowed even on a temporary basis. This remains the position even though, as I have explained it is now more likely that a temporary planning permission would be granted for a site, which would not eventually obtain permanent planning permission. The grant of temporary permission in this case would lead to unacceptable harm to an amenity in the light of the recommendations of the Inspector to which I have already referred. This recommendation of the Inspector upheld by the First Secretary of State, which has not been challenged by the Defendants, would constitute an additional reason why temporary planning permission will not or at least is highly unlikely to be granted in this case.... V1.Conclusions 131. My task is to look at all relevant matters and not merely the 2006 Circular to determine whether taking account of all relevant factors it would be proportionate to grant section 187 relief. When I stand back and perform this task. I come to the clear conclusion that this is an appropriate case in which to grant such relief. The planning considerations and the other factors set out in the report of the Inspector and the decision of the Secretary of State above are powerful factors when considered with the low prospects of the Defendants obtaining temporary planning permission lead me to the conclusion that I am obliged in the light of the statements in Porter and Davis to which I have already referred to grant the relief claimed, subject to the submissions of counsel”.

[93]I accept that submission. A “real prospect of success” is required before the adjournment/suspension route could be appropriate so as to militate against the Claimants being entitled to the relief claimed by way of injunction. It is true that in that case enforcement notices had been served and upheld and not complied with. But that does not affect the position. The principle applies to the first grant of an injunction.

[94]Mr Willers makes a number of points. He notes that in Flynn the Defendants had done no more than to undertake to make a fresh planning application, whereas the Defendants in this case have already done so. That may well make a difference to the ability of the Judge to assess whether or not there is a real prospect of success, but it cannot in my view alter the principle. I accept that in the present case there is considerably more evidence before me than appears to have been available to Silber J, in particular the Local Plan Inspector’s Report of May 2006, the draft RSS and the evidence of Mr Baker to which I have already referred. There are other factual differences. In Flynn the alternative sites which it was suggested might become available were sites which the Claimant in that case was not empowered or authorised to reopen because they belonged to another Council (see paras 35-36). In the present case insofar as a specific site has been referred to, it is the Newbridge Park and Ride site which is in the ownership of the Claimant in this case. Further I recognise (see para 63) that the recommendation of the Inspector in the Flynn case was that the occupation by the Defendants in that case should be ended as soon as possible. There is no corresponding recommendation in the Inspector’s report in the present case, indeed she contemplated that the occupation would continue for a further two years.

[95]I also adopt the other reasons for which in Flynn at paras 81 and 85 Silber J distinguished Smith. The Judge in Smith was not sure if the question of temporary planning permission had been considered and he had not had to consider the provisions of para 109 of Circular 11/94 excluding permission where the damage to the amenity cannot be accepted.

THE PROSPECTS OF SUCCESS OF THE FRESH APPEAL

[96]I approach the prospects of success of the fresh appeal by reference to the transitional provisions of Circular 1/06, in particular paras 45 and 46 (set out at para 12 above).

[97]In my judgment the following is the case. It is not expected that the planning circumstances of the appeal site, that is the Land, will change at the end of the temporary permission sought. Any planning circumstances that are expected to change are the planning circumstances of other sites that might become available as alternatives. There is, in the light of the new planning regime, an expectation that the planning circumstances of other such sites will change, but it cannot be said that the expectation is that they will change at the end of the period of temporary permission sought. The temporary period sought is linked to the hearing of the fresh appeal in relation to the Land, and that has no relation to the planning circumstances of other sites. There is an unmet need and no available alternative gypsy and traveller site provision in the area. There is an expectation that new sites are likely to become available in the area (although not necessarily in the area of the Council) which will meet that need. But when it is reasonable to expect that to be realised cannot be ascertained on the evidence before me. The timing will not be linked to the hearing of the fresh appeal, but to the carrying out of the new planning processes discussed in Circular 1/06.

[98]Of course, at the hearing of the fresh appeal there may well be evidence that is not before me. Events will have moved on by then, and paras 43 and 44 of Circular 1/06 (see para 12 above) envisage information which local planning authorities are expected to demonstrate that they have considered. Accordingly, I am prepared to assume that these Defendants may have a reasonable prospect of success in persuading the Inspector that the conditions set out in para 45 of Circular 1/06 will by then be satisfied, although they are not now satisfied.

[99]I turn to Circular 11/95 paras 108-113. Clearly para 110 (see para 13 above) does not apply if and to the extent that it relates to the Land. The planning circumstances of the Land are not expected to change, and will not (in my judgment) be expected to change at the time of the fresh Inquiry. Mr Willers submits that para 110 of Circular 11/95, read with para 45 of Circular 1/06, must mean that para 110 can apply where the planning circumstances of land other than the appeal site are expected to change. That seems to me to be a point on which he has at least a realistic prospect of success. It follows that I assume that at the fresh appeal the planning authorities and so the Inspector will give substantial weight to the unmet need in considering whether a temporary planning permission is justified.

[100]Accordingly I would conclude that these Defendants might well have a reasonable prospect of success on their fresh appeal, at least if it was their first appeal.

[101]Mr Langham submits that this is not enough. First, he submits that a review of the Inspector’s Report of April 2005 and the Decision Letter of the Secretary of State demonstrates that they did in fact give substantial weight to the unmet need. It is true that they did not say that they were directing themselves in accordance with paras 45 and 46 of Circular 1/06, because those paragraphs were not then available or contemplated in the form in which they now exist. But that does not mean that the Inspector and the First Secretary of State did not in fact do that. In my judgment it is clear that the Inspector did give what I would adjudge to be substantial weight to unmet need. See paras 6.2 to 6.4, 12.50, 12.51, 12.56 and 12.57 of her Report, cited above at paras 25 and 34 above. In his Decision Letter of June 2005 at paras 29 and 30 the First Secretary of State specifically repeated and agreed with the terms of para 12.57. I accept Mr Langhan’s submission that substantial weight was given to unmet need.

[102]Next Mr Langhan submits that what the Inspector was being asked by these Defendants to do was to grant temporary planning permission for three years, and that she decided not to recommend that. He submits that there is no reasonable prospect of a different view being taken on the fresh appeal.

[103]In my judgment it was not the intention of Circular 1/06 to restart the clock, in effect, on all pending enforcement procedures. It was not intended to make existing decisions unenforceable until they have all been reviewed in the light of the new Circular. I do not mean by that the new Circular is irrelevant to pending enforcement proceedings such as the one I am considering. The Court can take the policies expressed in the Circular into account when it comes to the exercise of the discretion whether or not to grant the injunction in the terms sought.

[104]In 2005 the Inspector and the Secretary of State gave substantial weight to the unmet need, but were nevertheless firmly of the view that a three year temporary permission from early 2005 ought not to be granted. In reaching her decision the Inspector specifically contemplated that the effect of her decision would be that these Defendants would in fact be likely to remain on the Land for a further two years, that is, until about May 2007.

[105]Overall, taking all the points relied on by Mr Willers into account, I see no realistic prospect of these Defendants succeeding in the fresh appeal.

CONSIDERATIONS RELEVANT TO THE GRANT OF INJUNCTIVE RELIEF

[106]The health and education needs of these Defendants and their families are one of the most important considerations in this case. At no time has anyone submitted that this is a case where, given those needs, it would be proportionate to order eviction if that would mean that the Defendants did not have an alternative and at least relatively permanent place to go to. The Claimant does not ask me to do that now. The three months period of suspension provided for in the order the Claimant does seek was included with the health and educational needs of the families in mind: see the Report to the Committee at para 74 above. Whether that period is the proper one is a point to which I shall return. The Inspector at para 12.66 made her recommendation on the understanding that “a lay-by existence would not be the immediate consequence of an appeal” (see para 40 above). The Council’s submission to the Inspector was that the medical needs could be met from another base, but one that they referred to as ‘permanent’: see para 8.21 of the Inspector’s Report referred to at para 27 above. The Residents (and as I think the Inspector also) concluded that this period of suspension would give the Claimant and other authorities time to make adequate provision for the gypsy community (see paras 9.13 and 12.66 of the Inspector’s Report cited at para 28 above).

[107]There is of course the need to enforce planning control. The need for this is emphasised in Circular 1/06, Annexes C, D and E para 1. The latter reads as follows: “1. Members of the gypsy and traveller communities have the same rights and responsibilities within the planning system as members of other communities. Planning permission is normally required for change of use of land… 4. You should make your planning application and wait for planning consent before you go on the site. Entering a site without planning permission can be a breach of planning control and maybe subject to a series of enforcement actions… 5. Normally gypsy and traveller site developments require a full application”.

[108]Although the breach of planning control in this case was neither innocent nor minor (see para 5 above) the degree of flagrancy is relatively low compared with other cases.

[109]Enforcement action has not hitherto been taken.

[110]The Claimant’s decision in October 2005 to bring these proceedings was reached after regard had been taken to all the material considerations and the article 8 questions were properly posed and approached, in so far as they related to the question whether the proceedings should be brought at all. I shall consider the period of three months suspension below. The Claimant’s decision was revisited no less than twice in response to points raised on behalf of these Defendants, first in February 2006 in the judicial review proceedings and then again in April in response to the points on Circular 1/06.

[111]I see no reason to differ from the views of the Claimant, the Inspector and the First Secretary of State, as to the significant degree of environmental damage which results from this breach of planning law. I note that neither the Inspector nor the Claimant have stated that there is a high degree of urgency to bring it to an end. I share the view that there is not a high degree of urgency. As Mr Willers points out, there is not in this case the clear recommendation that the occupation be ended as soon as possible which the Inspector in the Flynn appeal had made: see Flynn para 63. I have considered the possibility of the fresh appeal succeeding and concluded that there is no realistic prospect of that, or of the Claimant reaching a different planning judgment in this case.

[112]Given the need for the enforcement of the planning laws against everyone equally, gypsies and travellers as well as those whose way of life is settled, there is a need for injunctive relief in this case. This is accepted in Mr Willers’ Skeleton argument. Having weighed up the factors set out above, that is the conclusion that I reach. The issue of proportionality comes down to the length of the period of suspension.

[113]During his oral submissions Mr Willers made reference to the equitable doctrine that those who apply for equitable relief such as an injunction must come with clean hands. He submitted that the repeated criticisms by inspectors of the failures of the Claimant are relevant. He relied on para 63 of Circular 1/06 (para 14 above). This is not a submission which can be founded on Porter or any of the other cases to which I have been referred. The jurisdiction under s.187B is statutory. Although it is a discretionary remedy, the Claimant invoking it does so to enforce public law. The Claimant is not seeking to enforce a private right. If the Claimant were precluded from obtaining enforcement injunctions by their failure to make other provision in accordance with the applicable statutes and Circulars, it would be the public who would suffer, not the Claimant. I do not understand para 63 of Circular 1/06 (or its predecessor para 29 of Circular 1/94) to be importing the equitable doctrine. Rather I understand them to be drawing attention to what may be the consequences (in the light of Porter) if there is an absence of existing provision, that is to say no alternative site to which Defendants can move. Silber J considered and rejected a similar submission in Flynn at paras 56-61.

THE PERIOD OF AN INJUNCTION

[114]The basis for the period of three months is set out in the statement of Councillor Kew set out at para 67 above. It is not clear to me why he considered that a period of three months was a reasonable one to enable the needs of those on the site to be met with the co-operation of the relevant statutory agencies and authorities and those on the site themselves. There is no evidence before me of which agencies or authorities he was referring to, or what the Committee might have expected them to do. Mr Langham was unable to clarify the point further. It is possible to envisage a case where a particular need (say of a child for an operation) is scheduled to be met at a particular date, and there may then be evidence that the prognosis of the medical advisers is that the child will be fit to travel in three months time. That is not this case.

[115]The following gives the position in relation to the most seriously ill of those living on the Land. There is no evidence as to when in particular the child with encephalitis will be fit to be moved or what care she will need in future. There is no up to date evidence as to when the Seventh Defendant is expected to be well again, or what her long term medical needs will be, or how they may be met. The letter from her GP is dated 2nd February 2006 and records that her nephrectomy was on 10 April 2005. There is a letter from Ms Rhodes BA RGN HV of South Gloucestershire NHS Primary Care Trust dated 20 February 2006 in which she states that the Seventh Defendant continues to need long term hospital follow up for kidney disease and that without appropriate treatment she is at risk of kidney failure. The appropriate treatment is not specified. I have seen no evidence of when the child with attention deficit hypo-activity disorder received or is expected to receive treatment. Ms Rhodes writes: “My long experience of this work informs me that it is extremely difficult for Travellers to access the level of services they need when they are separated from family, dispersed and homeless”.

[116]Of course, the Committee was considering the matter at an earlier date. The order that I make must be made in the light of the evidence as it is today. On this evidence, or lack of it, I cannot share the Claimant’s view that a period of three months is a reasonable one to enable the needs of those on the site to be met with the co-operation of the relevant statutory agencies and authorities and those on the site themselves. I cannot form any firm view of what such a period might be.

[117]In these circumstances it is for consideration whether there ought to be an injunction at all. In my view there should, for the reasons that I have given. The grant of an injunction which is suspended establishes the principle that the planning decisions will be enforced in this case and provides a framework within which the outstanding issues can be addressed. But the basis upon which it is to be granted must be spelt out. I do not consider it to be established that the interference with the Art 8 rights of these Defendants and their families which would be involved in their being required to leave the site will be proportionate unless and until this court is able to conclude that specific alternative provision is made for their needs which the court considers to be sufficient to satisfy that condition. I suggest no means by which the court may be convinced of this. If when the period of suspension is about to expire these Defendants have not been able to make sufficient provision for their needs, then an application for a further period of suspension may be made.

[118]At that time the court may well expect the Claimant as well as the Defendants to adduce evidence of what provision it or other agencies have made, or offered to make, in fulfilment of their various statutory duties or otherwise. The Court may also consider whether the Claimant has demonstrated that they have considered up to date information relevant to alternative sites, as envisaged in para 44 of 1/06. The court may also expect the Claimant to provided up to date information of the kind referred to in para 6 of Appendix D of Circular 1/06 that is information from other departments and agencies with an interest, in particular housing, social services, and education departments, health and health authorities. The Report to the Committee for its meeting in October 2005 did contain information of this kind, some of it in the Confidential Annexes. The Court will be assisted by up to date information of the same kind.

[119]In these circumstances I can do no more than make a very rough assessment of how long may be needed for the needs of the Defendants and their children to met to a level that justifies the interference with their Art 8 rights that is involved in an order requiring them to leave the Land. Given that any period of suspension will now operate over the vacation period, I shall make the order but suspend it for 4 months.