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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Green, R (on the application of) v First Secretary of State & Ors [2005] EWHC 691 (Admin) (13 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/691.html Cite as: [2005] EWHC 691 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		13th April 2005

Wednesday, 13th April 2005

1. MR JUSTICE GIBBS: This is an appeal against the decision of an inspector appointed by the first defendant, the First Secretary of State, dated 7th May 2004. The decision was to grant planning permission for the use of land at Moate Farm, Stodmarsh Road, Canterbury, Kent, for the siting of caravans or mobile homes, to the third defendant.
2. In more detail the background to the present proceedings is as follows. It developed from the refusal of planning permission to the third defendant, Mr Shane Jones, by the second defendant, the Canterbury City Council, and the issue of enforcement notices against him by the council and his appeals to the Secretary of State against those decisions.
3. Appeal B, as it is called in this case, was an appeal against the refusal to grant planning permission (such refusal being dated 6th March 2003) by the second defendants for the stationing of three units of mobile living accommodation and ancillary storage including touring caravans.
4. Appeal A concerned an enforcement notice issued by the second defendants on 29th May 2003. The breach of planning control alleged in the notice was that without the required planning permission there had been a change of use from agricultural land to (a) stationing of three units of mobile living accommodation and ancillary storage including touring caravans and (b) residential use. The requirements of the notice under appeal A were to cease to use the land for the stationing of the three units of mobile living accommodation and to cease the use of the land for residential purposes.
5. Appeal C concerned an enforcement notice issued by the second defendant against the third defendant on 29th May 2003. The breach of planning control alleged in the notice included the installation of a cesspit and associated soil pipes, gas cylinders with associated plinths, hardstanding and delivery pipes, a block brick meter box, mains electricity cables and mains water pipes, the erection of timber structures abutting the caravans, timber structures used to provide ancillary storage, the construction of boundary fences in excess of 1 meter in height and the construction of a driveway and vehicular hardstanding. The requirements of the notice were effectively to remove those items which were connected with the use prohibited in appeal A, and to restore the land.
6. A brief history of what led to those three associated appeals is as follows. On 28th March 2001 the third defendant purchased the site. On 19th June 2001 he applied to the second defendant for permission to site 3 caravans of 20-foot by 40-foot for all-the-year-round dwellings. He supplied details, in response to the second defendant's request, in support of his contention that he and his family had gypsy status. He told them, among other things, that he had been on their list for rehousing for 10 years and that their papers had been lost. He said that they wanted to settle at the site; he and his wife, two children, his sister, her husband and four children, and his mother and father.
7. In or about August 2001 Mr Jones and his family and other relatives moved on to the site because they had no other place to park their vehicles or to live. The council's officers reported on 16th October 2001 that the application made by the third defendant was retrospective and said:

"Faced with increasing difficulties in maintaining gypsy travelling lifestyle both in terms of employment, finding sites to stay and concern for their children's future the applicant wishes now to settle down with his immediate family."

The second defendant decided to defer considering the third defendant's application pending a site visit.

8. On 13th November 2001 the second defendant's sub-committee considered the application again and resolved to grant planning permission. However, the claimants, the Friends of Fordwich and District, a local residents' organisation, challenged the decision. They did so on the ground that there had been an error in the second defendant's consideration of whether Mr Jones and his extended family were gypsies. The council conceded to the challenge in that they agreed to reconsider the application.
9. In a statement to the council in April 2002 the third defendant gave further details about his reasons for moving on to the site. It included considerations related to the ill-health of members of the extended family, and indeed the immediate family. It contained details about the third defendant's recent employment, his travelling and his lifestyle.
10. On 3rd December 2002 the third defendant made a further statement relevant to his alleged gypsy status. It is pertinent to note at this point that on 4th August 2002 there was a memorandum from the second defendant's licensing officer expressing reservations over whether the homes on the site at that time fell within the statutory definition of caravans. To that issue I shall return later.
11. Meanwhile, on 30th April 2002 the further consideration of the third defendant's application had again been deferred by the second defendant's sub-committee and the matter was reconsidered on 11th December.
12. In his affirmation statement, dated 3rd December 2002, the third defendant stated that it was neither his nor his family's intention to give up their gypsy way of life and they would use the site as a place where they could return to without any concerns about being removed. The third defendant provided an explanation for points that had been raised by the claimant in connection with his alleged employment. A number of documents were produced by the third defendant to support his affirmations.
13. The consistency and veracity of the third defendant were criticised on behalf of the claimant, both before the inspector and before this court. Objections were raised to the third defendant's application by the claimant and others. These objections related both to the third defendant's claimed gypsy status, and also to the detrimental impact which the development had on the character and appearance of the area.
14. There then followed the refusal of permission dated 4th March 2003 and the enforcement notices of 29th May 2003 which I have already described.
15. There was in due course an oral hearing before the inspector, at which the third defendant was represented by counsel, as was the second defendant. Mr Green, as chairman of the claimant, represented it before the inspector.
16. Mrs Bridget Jones, as I understand it, the fourth defendant, is the mother of the third defendant and has been added to the present claim as fourth defendant. Before this court Mr Comyn represented the fourth defendant, having represented the third defendant before the inspector. Mr Colville, counsel, now represents the claimant and Mr Mould the first defendant.
17. The inspector decided to allow the first and second appeals in part and to allow the third appeal. The effect of her decisions was as follows. Appeal A: the inspector allowed the appeal insofar as it related to the land shown hatched and crosshatched black on the plan annexed to the decision. She granted planning permission on the application deemed to have been made under sections 177(5) of the 1990 Act as amended for the development already carried out, namely for the stationing of three units of mobile living accommodation and ancillary storage including touring caravans and residential use, subject to a number of conditions.
18. Those conditions included that the permitted use should be carried on only by the third defendant and his dependants as defined, and should be limited to the period during which the premises were occupied by Mr Jones and his dependants, and thereafter that the permitted use should cease and caravans, material and equipment brought on to the premises should be removed.
19. There was a second condition that no more than three units of mobile living accommodation, falling within the definition of a caravan as set out in the Caravan Sites and Control of Development Act 1960 as amended, should be stationed on the part of the land shown hatched black on the plan annexed to the decision, and that, thirdly, another part of the land which was defined on the plan should only be used as an access road and should not otherwise be used for the purposes permitted by the decision including any ancillary purposes.
20. The net effect of the deemed permission granted, together with the conditions from which I have quoted, was to restrict the development to a defined area to the north and east of the land, to make the permission a personal one to the third defendant's family and to restrict the number and nature of the mobile living units. There were, in addition, further conditions which provided, among other things, for a landscaping scheme designed to minimise the visual impact of the development upon the countryside.
21. The decision on appeal B, which related to the refusal of planning permission, essentially repeated the effect of the permission granted under appeal A. Appeal C, which related to ancillary services and equipment, again was allowed. The inspector summarised her reasons for allowing the appeals as follows:

"The Appellant and his family are gypsies for planning purposes. The development complies with the Council's CDLP Policy D64 and is consistent with national policy regarding the provision of gypsy sites. It is not within an area of the countryside that enjoys special protection under statutory development plan policies. There is an unmet need for gypsy site provision in the District. In my opinion, there was no substantial evidence that the benefits provided by the site could be met from other possibly less harmful sites in planning terms in a similar way. I believe that the siting of the residential caravans should be restricted to the northern dog-leg part of the site. This part has the benefit of mature screening to the northern and part-western boundaries. The visual impact of the development could be satisfactorily mitigated by undertaking further landscaping. I consider that the effect on the character and appearance of the surrounding area and residential amenity would be limited in this position. I believe that the development would preserve the setting of the Fordwich Conservation Area. The family were initially encouraged by the Council to remain on the site. It would provide a settled base to meet the exceptional healthcare needs of the family. No alternative site is available and the family would suffer personal hardship if required to leave the site. I consider that there is an overriding need for this development in the countryside. I conclude that the personal needs of this family strongly outweigh any harm to the character and appearance of the surrounding rural area in this case."

That summary of the reasoning was given at paragraph 64 of the decision and the inspector went on in the subsequent paragraphs to give reasons for the attachment of conditions.

22. The grounds upon which the claimant challenges the inspector's decision may be summarised in this way (and in summarising them I am grateful to Mr Mould for his skeleton argument on the point): (1) on the basis of the evidence it was not open to the inspector reasonably to conclude that the third defendant, Mr Shane Jones, was a gypsy; (2) the inspector's conclusion that the third defendant was a gypsy was based upon an invalid approach to the meaning of "caravan" for the purposes of the 1960 and 1968 Acts; (3) the inspector failed properly to take account of development plan policies for the protection of the countryside and the setting of the Fordwich Conversation Area; (4) the inspector failed to give proper or intelligible reasons for concluding that the circumstances of the present case were materially different from those of the Willett appeal (the Willett appeal was an appeal in relation to an adjacent piece of land to the east of the appeal site; planning permission was refused for a development on that adjacent site and there were undoubtedly similarities between the two applications); (5) the inspector's approach to the personal circumstances of the third defendant and his family was wrong in law; (6) the inspector wrongly took account of an immaterial factor, ie the absence of any alternative, less harmful, sites for the development under consideration; (7) the inspector failed to take proper account of the impact of a decision to grant planning permission upon the rights of the claimant protected under Article 8 of the European Convention on Human Rights.
23. In approaching the issues it is important to note the obvious point that I am not the decision-maker. The task of this court is to review the decision of the inspector on established principles, and in particular to decide whether the inspector, in making her decision, acted perversely or unreasonably in the Wednesbury sense; whether or not she took into account irrelevant considerations, or failed to take into account material considerations; whether she abided by the relevant statutory rules, including the requirement to give proper and adequate reasons which are clear and intelligible and which deal with the substantial points which were raised for her consideration.
24. I must also bear in mind that the inspector was entitled to attach what weight she pleases to the various arguments and contentions of the parties, subject to the requirement of rationality. Further, I must bear in mind the principles that I must reach my conclusion on the lawfulness of her decision on the basis of the decision letter itself and any material which was before the inspector at the inquiry.
25. I also bear in mind that this court should not subject a decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or an Act of Parliament. The parties who received the decision letter are well aware of the issues involved and the arguments deployed in the course of the inquiry. It is not necessary for an inspector to rehearse every argument relative to each matter. The principles relating to the correct approach were dealt with by the late Forbes J in the case of Seddon Properties Ltd and Anr v Secretary of State for the Environment and Anr [1981] 42 P&CR 26. With reference to the Secretary of State and his inspector, the judge, in the course of his judgment at page 28, said this:

"Since the courts will only interfere if he acts beyond his powers (which is the foundation of all the above principles), it is clear that his powers include the determination of the weight to be given to any particular contention; he is entitled to attach what weight he pleases to the various arguments and contentions of the parties; the courts will not entertain a submission that he gave undue weight to one argument or failed to give any weight at all to another. Again, in doing so he must, at any rate if substantial issues are involved, give clear reasons for his decision.

"In considering whether or not the Secretary of State has acted contrary to any of these principles the materials on which the court may come to a conclusion are, in general, the inspector's report and the letter of the Secretary of State setting out his decision. In approaching this task it is no part of the court's duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph."

There have been a number of subsequent decisions which have repeated those principles with different emphasis and in different contexts, but they remain essentially unchanged.

26. The duties of the inspector which have to be subjected to review, and the duties of the local planning authority in considering an application for planning permission, are set out in the statute. In the Town and Country Planning Act of 1990 section 70 provides as follows:

"70. (1) Where an application is made to a local planning authority for planning permission -

(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

27. Section 54A as amended reads as follows:

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

28. I come now to some of the relevant planning policies applicable to this appeal. The first is the Kent Structure Plan. Policy ENV1 under that plan provides as follows:

"The countryside will be protected for its own sake. Development in the countryside should seek to maintain or enhance it. Development which will adversely affect the countryside will not be permitted unless there is an overriding need for it which outweighs the requirement to protect the countryside."

29. Policy RS5 provides as follows:

"Development will not normally be permitted in rural Kent other than at the villages and small rural towns unless ..."

30. There then follow five exceptions, none of which is apparently applicable to this case. The policy then continues:

"All such development will also be subject to Policy RS1."

31. Policy RS1 reads as follows:

"All development permitted at villages and small rural towns and in the open countryside should be well designed; appropriate in location, scale, density and appearance to its surroundings; acceptable in highway and infrastructure terms; have particular regard to the Plan's environment policies; and preserve and, as far as possible, enhance the character, amenity and functioning of settlements and the countryside..."

32. The second relevant document in connection with planning policies is the Canterbury District Local Plan. Policy D16 provides as follows:

"In the exercise of its planning powers the City Council will preserve or enhance the character or appearance of conservation areas. In and adjoining a conservation area, development which does not preserve or enhance the character or appearance of the area will be refused."

The appeal site is not within a conservation area but it adjoins a conservation area to the north.

33. Policy R1 provides as follows:

"Proposals for undeveloped land in the countryside will be permitted only exceptionally where it can be shown that the need for the development outweighs the harm that would be caused to the rural area."

34. Policy R2 provides:

"Proposals which would have an adverse effect on the character or appearance of the countryside and villages will not be permitted."

35. There are particular policies, in both the Structure Plan and the District Plan, which relate to gypsies. In the Structure Plan policy H8 provides as follows:

"Where there is an identified need, the local planning authorities will make provision for accommodation for gypsies in local plans and through development control. Provision should be consistent with the Structure Plan's environmental, countryside, agricultural, archaeological and green belt policies, and will not normally be permitted in areas protected under policies ENV3-ENV6."

It should be stated that the appeal site here is not within the Green Belt and not within the protected areas there set out.

36. In the Canterbury District Plan there are the following relevant provisions in relation to gypsies. At 2.179 the statutory definition of gypsies pursuant to the Caravan Sites Act 1968 is set out. Reference is made to encouragement given to gypsies to find their own private sites and to government circulars 1/94 and 18/94 providing guidance on the provision of sites for gypsies and other relevant matters. At 2.181 it is provided as follows:

"The Structure Plan Policy H8 and Circulars require provision be made for gypsy sites in accordance with identified need. The City Council will continue to support the existing official permanent gypsy caravan site in the District at Vauxhall Road which is adequate to meet expected demand and does not propose a need for any additional provision. Private planning applications for gypsy sites could be made and it is considered that the Plan should provide general policy guidance."

37. Policy D64 is as follows:

"In considering proposals for private gypsy caravan sites the Council will have regard to the following criteria:

(a) The use of the site does not have any adverse impact on the residential amenity of existing buildings or uses, either by the close proximity, activities or operations on the site which would be detrimental to the surrounding area.

(b) It should not be located within areas designated as having special nature conservation, landscape, or conservation importance.

(c) The site, caravans and associated activities shall be adequately screened from the surrounding land.

(d) The site should be well related to local services and facilities - shops, public transport, medical and social services.

(e) Access to the site should not be detrimental to highway safety for vehicles and pedestrians and will not conflict with transport policies."

38. I turn now to the claimant's submissions on the first ground of this appeal. The claimant does not seriously contend that the third defendant, and indeed his immediate and extended family, have never been leading a nomadic life and/or have never been gypsies. The submission made is essentially that they have abandoned their nomadic way of life. It is submitted that the third defendant and his family have in fact settled at the site. Reliance is placed on an issue to which I shall return later, namely that they do not live in caravans. Reliance is also placed on the statements that the third defendant has made, which, it is submitted, indicate a firm and settled intention to live at the site.
39. It is contended that the inspector erred in law in relying upon the third defendant's past lifestyle. The reliability and veracity of the third defendant and his assertions are challenged. It is said that the inspector gave no, or no proper, weight to the discrepancies to be found in his different accounts and in the documents produced by him. It is submitted that the inspector failed to give any, or any proper, consideration as to how things stood at the date of her enquiry and to address properly the question whether there was an intention to continue travelling.
40. In summary, it is submitted that the inspector erred in concluding that the third defendant fell within the meaning of the term "gypsy". This submission is based on the definition of the word "gypsy" set out in section 24(8) of the 1960 Act to which I have already referred. By that subsection the gypsies are defined as being people:

"... of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or persons engaged in travelling circuses, travelling together as such."

The claimant accepts that living a nomadic life for that purpose does not necessarily connote constant movement, but it does require a habit or rhythm of movement.

41. In my opinion, subject to one important issue to which I shall come in due course, it would have been open to the inspector to find that the third defendant had not abandoned his gypsy status.
42. The leading case on this topic, as is recognised by all parties to this appeal, is Wrexham County Borough Council v The National Assembly of Wales & Others [2003] EWCA Civ 835, and also reported at [2004] JPL 65.
43. The Court of Appeal judgments in that case are to the effect that the question of whether a person is of nomadic habit of life is one of fact and degree. The various applicable considerations are dealt with in detail by Auld LJ in the case. They are, for the purposes of the present case, helpfully and concisely summarised in the brief second judgment of the court given by Clarke LJ. At paragraph 60 of the judgment he says as follows:

"60. The cases cited by Auld LJ support the following propositions, which I take from his judgment:

(i) The time at which gypsy status falls for decision is the date of the planning decision.

(ii) The decision in each case whether persons are 'of nomadic habit of life' within s24(8) of the 1960 Act and, therefore within the policy set out in the Circulars, is one of fact and degree.

(iii) Depending upon the circumstances, a gypsy may retain his nomadic habit of life even though he is not travelling for the time being.

(iv) Where applicants for permission have retreated to their permanent base, the question for the decision-maker is essentially one of fact whether, in doing so, they have abandoned their nomadic way of life.

61. It seems to me to follow from those propositions that, depending upon the circumstances of a particular case, a person may continue to have a 'nomadic habit of life' even though he is not travelling for the time being and may not do so for some considerable time, perhaps because of illness or the educational needs of his children, provided that he has not abandoned his nomadic habit. As Auld LJ has observed, the decisions on the facts in Bungay and O'Connor are examples of a person and/or his family retaining his status notwithstanding that it was likely to be a considerable period before he or they were likely to resume travelling. Thus all depends upon the facts of the particular case.

"62. I have added the above, not in order to disagree with any part of Auld LJ's judgment, with which I agree, but simply to underline the point that, although the decision must be taken as at the date of the planning decision, it is in principle possible for a person to retain gypsy status for planning purposes even though it may be sometime before he can resume travelling, provided that he can show that he has not abandoned his 'nomadic habit of life'."

44. The inspector, in the course of her enquiry, heard oral evidence on the issue of whether the third defendant and his family had a nomadic way of life. She considered the cases on behalf of the second and third defendant, in great detail, as well as representations by the claimant.
45. She dealt with these matters at paragraphs 17 to 32 of her letter. I need not rehearse all the considerations which she then reviewed. I merely mention some of them. She referred to the third defendant's background as a member of the traditional Romany gypsy traveller family, to his statement that the family had worked all round the country travelling back and forth from their base. She referred to a period between April 2001 and April 2002 when he and his father and sister had travelled around the country selling plastic facias and windows. She referred to the fact that he had continued to travel, but not with the whole family group, since coming on to the appeal site. Mention was made of the family's need for medical treatment and also for schooling.
46. The inspector referred to the fact that the third defendant said that he would continue to travel as and when the need arose, particularly once the planning position for the base had been sorted out; that it was natural for him and his family to travel; and that he had every intention of continuing his travelling lifestyle.
47. The second defendant did not challenge the gypsy status of the third defendant; but the claimant did challenge it, and was heard on the topic. The inspector considered the submissions made, in particular the submission based on the fact that the third defendant had owned a house in Sittingbourne and lived there in 1999, and also the submission that the currently occupied dwellings fell outside the legal definition of what would constitute a caravan; and that the third defendant's particular mobile home was too large to come within the legal definition of a caravan.
48. Between paragraphs 26 and 29 of the decision letter the inspector dealt with the question of the third defendant's mobile home. At paragraph 32 the inspector concluded as follows:

"The Appellant does not currently own a touring caravan nor does he take his existing home with him when travelling. However, he indicated that the touring caravans had been sold in order to resource this appeal. Having regard to the Appellant's general pattern and location of work I find, as a matter of fact and degree, that his gypsy status has not been lost. Although he now wishes to establish a permanent base on the land it remains his intention to travel from the site in order to earn a living. I do not consider that he and his family have abandoned their gypsy lifestyle in favour of a more settled existence. I am entirely satisfied that they fall within the statutory and policy meaning of the term 'gypsy'."

49. But for matters relating to the vans and other structures on the site, to which I shall return in due course, I can detect no error of law or material omission in the finding there made by the inspector and the discussion which led to that finding.
50. What then about the nature of the accommodation ie the vans and/or other structures on the site? The enforcement notices speak of three units of mobile living accommodation, as does the original planning application, but in the memorandum dated 4th August 2002 by the second defendant's licensing officer, serious doubts were raised as to whether any of the three structures then present were caravans. It is, I think, necessary, to quote that memorandum:

"Having now been out to the above, they have 3 homes there - one consists of two static caravans linked by a timber structure, the second & third both have timber extensions to them, & they have a fourth static used for storage. Are all of these included in the pp? The timber extensions/link structure takes the homes out of the definition of a caravan under the Caravans Sites & Control of Devt Act. They said you know all about them all, but I am a bit concerned about licensing caravans that aren't strictly speaking caravans any more!"

51. One of those three vans or structures was subsequently replaced by a mobile home occupied by the third defendant at the eastern boundary of the site. This was the subject of focused attention by the inspector in her decision letter between paragraphs 26 and 29. In those paragraphs she concluded that the type of accommodation occupied by Mr Jones was clearly a material consideration in determining his gypsy status. She went on to say that the term "caravan", when used in a formal document under the planning Acts, has the meaning given to it under the Caravan Sites and Control of Development Act 1960. She then went on to quote from that definition. She went on to consider the amendment to the definition brought about by the Caravans Sites Act 1968. Those amendments relate to the size of a structure and its construction. At paragraph 28 she says this:

"28. The Appellant's home was measured at the time of my site visit. It was found to be 20 ft 1 in wide and 40 ft 1 in long with a roof overhang of 1 ft 6 ins on each side (measured externally). The length of the home is well within the statutory limit. The roof overhang does not extend the living accommodation and the external width is otherwise only 1 inch in excess of the statutory limit. The structure has obviously been designed for human habitation and to be capable of being moved from one place to another. I consider the differences in the dimensions of this structure compared to those prescribed by statute to be de minimis. In my view, it is a caravan.

"29. In any event, even if this structure were not technically a caravan I saw that it has the traditional design and appearance of a typical twin unit mobile home. It has wheels and is similar in character to other caravans occupied by gypsies. It is physically capable of being moved by road from one place to another. It is very similar in size to other mobile homes that fall within the statutory definition. Having regard to its degree of physical attachment, potential mobility and size I find, as a matter of fact and degree, that its presence has involved a use of the land rather than operational development. Mr Jones clearly thought that he had purchased a mobile home and believed that he was living in one. I do not consider that his occupation of this structure materially affects his gypsy status."

52. In my view if the only objection to the vans or structures on the site related to the dimensions of Mr Jones' van, the reasoning and conclusion of the inspector might well not have been open to criticism. However, Mr Green, on behalf of the claimant, said at the inquiry that he believed that all the structures fell outside the definition of a caravan. That is referred to at paragraph 25 of the letter. That reads as follows:

"Mr Green submitted that in order to qualify as 'gypsies' the Appellant and family must live in a caravan. He believed that the dwellings currently occupied on the site fell outside the legal definition of what could constitute a caravan. He contended that the Appellant was not a gypsy as his 'mobile home' was too large to come within the legal definition of a caravan."

53. The inspector, in her letter, did not address the question of the other items on the site, be they caravans, structures or otherwise described. Yet that was the question that had exercised the second defendant's licensing officer in August 2002. Further, Mr Colville, on behalf of the claimant, draws attention to the following extract from the written submission from the claimant, dated 4th March 2003:

"This is the first of three proposed residential units, created by bolting together two 'mobile' units. To qualify as a caravan (under the Caravan Sites Act 1968) it needs to be capable of being transported on public highways in one piece, without separation into its component parts. If the above structure is not a mobile home according to the 1968 Act, then the application fails the first test of Gypsy status employed by the Officer."

54. The claimant submits as follows. Mr Colville concedes that in respect of all three mobile homes the inspector correctly records the claimant's objection to each of them being outside the definition. It is contended that the two mobile homes, apart from that of the third defendant, are not only not single units but each has an extension. The second mobile home has a timber construction which must not only be included in the calculation, and the third mobile home is made up of two units connected by a timber extension. In both cases it is submitted that the inspector failed to consider the dimensions of those units, whereas it is clear that they should have been addressed and taken into account in determining whether the third defendant had retained his gypsy status.
55. Reliance is placed on the fact that the second defendant considered that the two further units, together with their timber extensions, were operational developments and therefore fixtures; then each unit cannot be regarded as being capable of movement as a single unit. It is submitted that, taken as a whole, the extensions are fixtures such that the unit cannot be moved as a whole.
56. Reliance is placed on the decision in Carter & Anr v Secretary of State for the Environment [1994] 1 WLR 1212. In that case there fell for consideration whether a particular structure qualified as a caravan within the statutory definition. In the course of his judgment the President, Sir Stephen Brown, at page 1219, letter C, said as follows:

"In order to qualify for the description 'caravan' in section 29 it is therefore 'the structure' that has to possess two qualities. The first part of the section provides that it is necessary for 'the structure' to be designed or adapted for human habitation. This, in my view, clearly contemplates the structure as a whole, as a single unit, and not the component parts of it. The second quality which 'the structure' has to possess is mobility. The structure has to be capable of being moved by being towed or transported on a single motor vehicle or trailer. 'The structure' contemplated by the second part of the section is, in my judgment, precisely the same structure as that contemplated by the first part of the section, not a structure which has been dismantled before loading has taken place. In my view the second limb of the definition can therefore refer only to a whole single structure and not to component parts of it."

57. In considering these submissions, I note that the structures of the two units, other than the third defendant's caravan brought more recently on to the site, are shown in a photograph taken in summer 2003 at page 25 of the trial bundle. From the descriptions given of those two structures, together with the photograph in question, I conclude that there is clearly a sustainable argument that each of those units taken as whole amounts to a single fixture consisting of a caravan or caravans bolted on to other structures. It is clearly arguable that each of those units should be considered as a whole. If each unit is so considered then it is more than arguable that each unit is incapable of being moved as a single unit. That applies with particular force to the unit stationed in the most westerly position on the site, which actually appears to consist of two mobile residential units connected by a timber extension.
58. These issues were not dealt with by the inspector. In my judgment they were material considerations for two associated reasons. First, they had at least a significant potential impact on the question of gypsy status, but, secondly, because if those structures, or one of them, are not in law "caravans" within the definition of the 1990 Act and/or were not properly described as "units of mobile living accommodation", then the formal decisions made by the inspector are not consistent with the factual reality of the development on site.
59. One only has to consider the terms of paragraphs 73 of the letter which sets out the formal decisions to become aware of that, because planning permission was granted by the inspector in these terms: for "the use for the stationing of three units of mobile living accommodation". One of the conditions attached to that permission, from which I have already quoted, are that:

"No more than 3 units of mobile living accommodation falling within the definition of a caravan as set out in the Caravans Sites and Control of Development Act 1960 as amended by the Caravans Sites Act 1968 shall be stationed on that part of the land shown hatched black on the plan annexed to this decision at any time."

60. I have considered the possibility that the inspector's findings imply that each of the homes in question falls within the definition of "caravans" and that the structures attached to the various vans are merely "ancillary storage" (to use an expression set out in the decision). But in my view that argument does not assist. There was a very real problem here which needed to be addressed specifically and there is no indication that it was identified by the inspector. If it was identified there is no indication of her reasoning in relation to it.
61. On that ground I conclude that the appeal should be allowed. I so conclude because the inspector, in my judgment, failed to take into account a material consideration, or if she did take it into account she gave no reasons for any decision that she made about it.
62. As to the other grounds of appeal I do not think it necessary to address them in detail, but I will make some observations about them in deference to the inspector. With the exception of the ground on which I have allowed the appeal I do not have considered the appeal would have had merit. With the identified exception this decision letter was a most careful and comprehensive one.
63. I would have rejected ground 3; the inspector approached the development plan policies with considerable thoroughness and care and carried out the appropriate balancing exercise culminating in the summary at paragraph 64. I would have rejected ground 4; there were rational identified grounds upon which the inspector was entitled to distinguish between the Willett appeal and the current case. I would have rejected ground 5; the inspector was entitled to consider the special and/or exceptional circumstances of the third defendant and his family, and she did so in conformity with the principles set out by Ouseley J in Basildon v Secretary of State [2001] JPL 1184. I would have rejected ground 6; the inspector's approach to the absence of alternative sites was, in my view, beyond reproach and consistent with the policies in the development plans. It did not, when read as a whole, imply an onus on the second defendant to find or propose an alternative site. I would have rejected ground 7; the submission of the claimant on a human rights basis is unarguable in the light of the Court of Appeal's judgment in Lough v First Secretary of State [2004] 1 WLR 2557.
64. It follows that but for the failure to deal with the definition and nature of the vans and/or other structures on the land, this appeal would not have succeeded. But I add that the status and definition of what is actually on the land and, accordingly, of what planning permission has actually been granted for, are very real issues. They substantially affect the reality of what was being permitted by way of development on the land by the inspector's decision. They are also of actual or, at the very least, significant potential relevance to the degree of permanence of the development being permitted.
65. For the reasons given I allow the appeal and quash the decision.
66. MR COLVILLE: My Lord, can I, in the light of your Lordship's finding, ask for the appellant's costs to be paid by the first defendant? There has been a costs schedule that has been served and I do not know whether your Lordship has seen that.
67. MR JUSTICE GIBBS: I do not think I have. It may well be with me but I am afraid I have not considered it.
68. MR COLVILLE: My Lord, can I hand it up and ask for detailed assessment.
69. MR JUSTICE GIBBS: Mr Mould, do you have any observations to make?
70. MR MOULD: I plainly cannot resist the principle of the application for costs, so I accede to the fact that the Secretary of State must pay the claimant's costs. As to the schedule of costs, my Lord, I will be content for your Lordship, for my part, to assess costs summarily, but I do respectfully submit that in two respects the costs shown in the schedule are somewhat disproportionate to what was required in this case. The first of those, with respect, is my learned friend's fees. Your Lordship sees those at the top of page 2 of the schedule, that has been put in. Overall they amount to some -- just over £7,000. By way of comparison my fees for the matter amount to some £1,800. My learned friend and I are of comparable call, I am 1987, he 1989. Obviously a somewhat greater burden falls on the claimant than on the respondent in preparing the case, but I do respectfully say that those fees for a hearing in this case, allowing for the overall complexity of the matter and so on, and duration of the hearing, is over the odds.
71. The other matter, my Lord, is that your Lordship will see attached is a bill to the claimant's solicitors from Sharpe Pritchard, their London agents, which shows a fee of £600 for arranging entry of the statutory review into the court list. £600, I say that is a little high as well.
72. Doing the best I can, I invite your Lordship to give some, if he is with me on those points, to give some allowance to what I say overall is a somewhat excessive bill and to assess costs, not in the sum of £13,000, but to reduce them by say £1,000, assess costs in the sum of £12,000. As it happens that would mean that the claimant's costs would be assessed in just under double the costs incurred by the Treasury Solicitor which were in the sum of £6,375.
73. MR JUSTICE GIBBS: Yes.
74. MR COLVILLE: My Lord, in respect of time. My Lord, the Secretary of State spent 20 hours in terms of perusing the bundle and dealing with the appeal, of which there is a lot of documentation. As far as my own fees are concerned, there is not just the attendance today, it was conference and also advising in respect of and leading up to the skeleton argument. So it is not just for -- your Lordship will be familiar as to what is required to be done in preparation.
75. I would say that, my Lord, the level of costs are reasonable, particularly with regard to Sharpe Pritchard. The London agents were used to file the appeal. That is what they charged and that is what was paid by Mr Green. He was required to pay that and he is a private individual together with --
76. MR JUSTICE GIBBS: I think it is fair, Mr Colville, if I indicate to you that I am minded to assess the costs at £12,000 which is a modest reduction proposed by Mr Mould, not only for the reasons that he has given, but because -- and I have been greatly assisted, may I say, by your submissions and by Mr Mould's, both identified the issues well and concisely, and also by Mr Comyn -- but I have to point out that I do not think much of quite a few of your grounds.
77. MR COLVILLE: My Lord, I gathered that.
78. MR JUSTICE GIBBS: And the result of your rehearsing them has perhaps added to the length of the case. So I think £12,000 probably meets the justice of the case all round.
79. MR COLVILLE: My Lord.
80. MR JUSTICE GIBBS: I assess them at £12,000.
81. MR MOULD: My Lord, I am very grateful. Can I just raise one other matter and that is the question of application for permission to appeal?
82. MR JUSTICE GIBBS: Yes.
83. MR MOULD: My Lord, as your Lordship knows, there are broadly two bases upon which such an application may be made. One is that there is a real, as opposed to a fanciful, prospect of success, as it were, on the merits. The second is that this case raises some question of broader public interest. I am bound to say, I would be hard pressed to argue that the latter is of any great relevance here on the basis of which your Lordship has decided that the matter should be quashed, but I do respectfully remind your Lordship of my submission to you yesterday on the issue upon which your Lordship has allowed the appeal.
84. MR JUSTICE GIBBS: Yes, this was your final submission.
85. MR MOULD: Yes, but, of course, the point, that is to say the question of the significance of those structures other than that occupied by Mr Jones himself, as of course your Lordship says the inspector did deal with, it did appear to be uncontroversial that that was that the status and significance of the other structures was not -- although it was raised in issue -- was by no means raised as a major or significant issue at the inquiry by Mr Green. I made the submission that in those circumstances the inspector was to be forgiven for not addressing it expressly because of the ordinary approach that she is to deal only with those issues which are principal, important, controversial issues before her.
86. Now, my Lord, it is an uphill struggle for any applicant to seek to persuade a judge that his decision may be -- there may be a real, as opposed to fanciful, prospect of success on appeal, but I do say that when one bears that broad principle and the approach in mind, and bearing in mind the (inaudible) by the decision on the future of the site, then I do, with respect, have more than a fanciful prospect of persuading the Court of Appeal to take a different view on that single issue from that with which your Lordship has taken.
87. MR JUSTICE GIBBS: Yes, thank you. Do you want to say anything?
88. MR COLVILLE: Your Lordship's judgment in relation to the issue on which the decision was quashed is quite clear. The issue was raised before the inspector and she did not address the particular point in relation to whether or not it was actually a caravan. It was a fundamental issue she saw as important in addressing the question of gypsy status (inaudible) in relation to one unit not ignoring the other two, and your Lordship has quashed the decision on the approach that was taken. In the light of that there is no real prospect of any success on appeal and therefore permission should not be granted and rather should be dealt with by the Court of Appeal.
89. MR JUSTICE GIBBS: Yes. Thank you.
90. MR GOODMAN: Sir, I appear in place of Mr Comyn. I have been caught somewhat by surprise and this was a last-minute substitution.
91. MR JUSTICE GIBBS: You would like to support Mr Mould, would you?
92. MR GOODMAN: I would like to support Mr Mould's application and request that if leave to appeal is granted that the third and fourth defendant, who I represent, be joined in that appeal. The fourth defendant's right to a home under Article 8 is engaged by this appeal, as is recognised in the inspector's decision, and that is a right of fundamental importance. The fourth defendant has a right to continue to take part in the proceedings should they go further.
93. MR JUSTICE GIBBS: Yes, thank you. Mr Mould, I am minded to grant leave to appeal in this case. The point which I have decided against the defendants is not an entirely easy point, partly because of the way the matter arose in the history of the case. I do, however, regard it as a very significant issue in planning terms on the merits of this particular case. I raise that for this reason, and this is not to be taken as part of my judgment, it is merely perhaps an observation which may or may not be helpful: had it been the case, which of course it was not, that there were three items on this site which undoubtedly were caravans within the statutory definition, or which the inspector for good and sound reasons actually given in her decision letter was entitled to regard as caravans, then, on my findings, the decision would not have been disturbed.
94. MR MOULD: My Lord, indeed so.
95. MR JUSTICE GIBBS: Therefore, the considerations personal to the third defendant and his family, and the way in which the inspector dealt with them, would not have been impeached.
96. MR MOULD: My Lord, I entirely accept that and if I may say so those observations are very helpful and I have no doubt at all that the Secretary of State for his part will give very careful consideration to them in deciding what is the appropriate way forward in relation to this case.
97. MR JUSTICE GIBBS: I think you have grasped immediately my thoughts on this matter, and my thoughts are these: that in terms of justice to the third defendant and his family in particular, it may be that the route of further expenditure on an appeal is not necessarily the most fruitful one.
98. MR MOULD: My Lord, I have that point very much in mind and your Lordship will appreciate that your Lordship's kindness in granting permission enables the Secretary of State to consider carefully what is the appropriate way forward with the knowledge that he can pursue an appeal to the higher court if so advised, but clearly if his conclusion is to take a different course then he will bear what your Lordship has in mind very much in deciding what is appropriate.
99. MR JUSTICE GIBBS: Yes. But I do concur that the issues cannot be regarded as of major public importance, save perhaps for the fact that it is quite important to look at everything that is on a site before making a decision.
100. MR MOULD: Yes, and I hope again that with your Lordship's kind reminder of that, that that is something that is, of course, the route of any planning decision of this kind and we try our best to make sure we bear that in mind. I am very grateful.
101. MR GOODMAN: My Lord, may I clarify, if the Secretary of State takes the decision not to appeal, whether the fourth defendant has an independent right to apply for leave to appeal to the court.
102. MR JUSTICE GIBBS: Well, you have both got leave to appeal, but the remarks that I address to Mr Mould were remarks intended to assist the third defendant in a way as to the most fruitful way forward. Therefore it may be that if the first defendant takes a certain approach in this matter it would be very much in the third defendant's interest to follow suit or to concur in that approach. But since you are pretty recently instructed, and there is no criticism for that at all because I allowed it to happen, perhaps it would be worth you having a word with Mr Mould about the situation before advising your clients.
103. MR GOODMAN: My Lord, thank you.
104. MR COLVILLE: My Lord, before your Lordship rises, I take note of your Lordship's observations in respect of potentially one way with which to deal with this appeal. My Lord, can I just say that as far as that is concerned, clearly it is a matter for the Secretary of State to decide how to deal with this decision, but there must be proper considerations and indeed a decision as to how to deal with the issue on which the decision was being quashed; namely consideration of the units on site and whether or not those units actually are caravans, and the impact if they are not in respect of gypsy status and so forth. It is not merely a case of inserting an extra couple of lines in what is the decision.
105. MR JUSTICE GIBBS: No, certainly not. The claimant at present has the decision to quash the inspector's decision and what happens thereafter must follow all proper procedures.
106. MR COLVILLE: Indeed, my Lord.
107. MR JUSTICE GIBBS: No doubt the claimant's interests will be safeguarded in that connection.
108. MR COLVILLE: Indeed, my Lord.
109. MR JUSTICE GIBBS: At the risk of repetition, and putting matters in another way, what I have in mind is that there may be a very substantial difference between -- or there may be, I say, putting it no higher than that -- that which is actually on the site and a proper definition of permission to station three mobile homes within the statutory definition.
110. MR COLVILLE: My Lord.
111. MR JUSTICE GIBBS: And the difference may be one which is crucial so far as your clients' interests are concerned.
112. MR COLVILLE: Indeed my Lord.
113. MR JUSTICE GIBBS: They may not be as upset by three caravans on the site as by the structures that are apparently there at the moment.
114. MR COLVILLE: My Lord, indeed it is a matter for the Secretary of State to deal with.
115. MR JUSTICE GIBBS: I have probably gone well beyond my remit in making these observations and as I have said, they must be regarded as wholly separate from the substance of my judgment.
116. MR COLVILLE: Indeed, my Lord, I am grateful. Thank you. My Lord, before your Lordship rises, as far as the fourth defendant is concerned, he is publicly funded and will therefore need detailed assessment.
117. MR JUSTICE GIBBS: Very well, that will be granted.