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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 >> Smith, R (On the Application Of) v Secretary of State for Communities and Local Government & Anor [2012] EWHC 963 (Admin) (16 March 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/963.html Cite as: [2012] EWHC 963 (Admin), [2012] JPL 975

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

		Royal Courts of Justice Strand London WC2A 2LL
		16 March 2012

1. MR JUSTICE OUSELEY: On 28 September 2010, an Inspector, appointed by the Secretary of State for Communities and Local Government, held a hearing into a number of appeals made by the Gypsy occupiers of land at Moss Road, Askern, Doncaster. The occupiers had changed the use of the land from agriculture to a private Gypsy caravan site and had carried out certain operational development, such as the laying of hard standing and the erection of fences. An Enforcement Notice had been served. That was the subject matter of an appeal on the grounds that planning permission should be granted and time for compliance should be extended. The Local Authority had also refused planning permission for the change of use, and the occupiers had appealed against that refusal of planning permission.
2. In her report, dated 26 January 2011, the Inspector recommended that all the appeals be dismissed, save that against the Enforcement Notice on ground G. She recommended that the time for compliance be extended to 12 months from the period of three and six months in the Enforcement Notice, depending on the particular requirement at issue. There is no appeal against the Enforcement Notice decision. The appeal is confined to the refusal of planning permission, which encompassed both a refusal of permission for a permanent change of use, as well as a refusal of a temporary planning permission.
3. The recommendation of the Inspector was accepted by the Secretary of State in his decision letter, dated 9 March 2011. The Inspector's conclusions and recommendations were accepted.
4. Mr Willers, on behalf of the claimant, challenges the Secretary of State's decision on the grounds that he decided to give less weight to Circular 01/2006 entitled "Planning for Gypsy and Traveller Caravan Sites" because he had decided to revoke it, subject to necessary impact assessments in a decision announced on 29 August 2010. It was said that it was irrational to give less weight to that Circular. It was also contended that the Secretary of State had failed to provide legally adequate and clear reasons as to his conclusions in relation to the effect of giving less weight to the Circular. It was not clear to which particular parts he had attributed less weight, and how that had affected his decision on the appeal, compared to what it would have been had he not reduced the weight he gave to the Circular.
5. The final ground was that the Secretary of State had not taken account of, or had misunderstood, the applicability of paragraph 71 of Planning Policy Statement 3 (PPS3) Housing. Paragraph 71 provides that where there is a shortfall in the five-year supply of deliverable sites for housing that meant that he should look favourably upon the grant of planning permission.
6. The Inspector's report deals with the Secretary of State's position in relation to Circular 01/2006 as follows:

"3. The Government has recently announced the intention to revoke Circular 01/2006: Planning for Gypsy and Traveller Caravan Sites. At the Hearing, the parties' views were sought as to the weight to be afforded to that guidance in the light of this announcement. The appellant's position is that the Circular remains in force and full weight must be afforded to it until it is formally cancelled. The Council submits that the fact that the Government intends to adopt a different national policy regime should be taken into account.

4. The indication given by the Government is that Circular 01/2006 is to be replaced with a light-touch guidance outlining Councils' statutory obligations. No timing of the revocation has yet been announced and the Secretary of State has indicated that an impact assessment is required. The Secretary of State's announcement is clearly a material consideration which must be taken into account and affects the weight that can be attached to the Circular as a statement of Government policy. However, the Circular remains in place for the time being with, as yet, no draft replacement and is a material consideration in this case."

7. The Inspector does not return to the effect of giving less weight to Circular 01/2006 in any of the sections of her report in which she reaches conclusions about the significance of, and weight to be attached to, any of the many factors she considers, to which the circular applies, nor did she return to it when she came to her overall conclusions.
8. It is appropriate to set out how she did approach her conclusions. She set out the main considerations, to which her conclusions were to be directed, in paragraph 90. Those are comprehensive and without error. She concludes that the development would be inappropriate in the Green Belt, which was not at issue, and that the harm to the Green Belt was a factor to which substantial weight must be given. She attached considerable weight to the harm which the development did to one of the purposes of the Green Belt, namely to assist in safeguarding the surrounding countryside from encroachment.
9. She considered then that the development had a significant urbanising effect that materially detracted from the rural qualities of the locality. There were parts of the borough that fell outside the Green Belt, so there was an extensive area outside the Green Belt and outside the flood risk area where the creation of new Gypsy sites could be accommodated. She then said:

"I accept that any new development within the rural area is bound to cause a degree of harm to the character of the environment. However, even taking into account national guidance that sites in rural settings are acceptable 'in principle', this development would unacceptably detract from the visual amenities of the Green Belt and the character and appearance of the surrounding rural area. These are factors to which I attach considerable weight."

She then turned to the unmet need for additional sites.

10. There was an issue at the hearing between the appellants and the Council as to whether there was an unmet need at all. The Council came up with some new and unexpected figures which the Inspector found difficult to accept, to the effect that there was no longer an unmet need. The Inspector took the view that the evidence she had did not sufficiently support the accuracy of the Council's need figures. The other available sources of information supported the continuing existence of "an immediate unmet need". She concluded on this issue in paragraph 106 that the balance of the evidence indicated that there remained an unmet need for additional Gypsy site provision within the borough, although the precise extent of that need in terms of an exact number of pitches was, for the moment, unclear. She turned to the development plan policy background concluding that the weight to be attached to various out-of-date policies needed to be "significantly reduced", and little weight could be attached to the proposed revised policies because of the early stage at which they were in the process leading to adoption. On need and the policy background she then concluded:

"The existing unmet need in combination with the current deficiencies in the Development Plan policy background in relation to the provision of Gypsy and Traveller sites are material considerations in support of this appeal to which considerable weight can be attributed."

11. She turned to the availability of suitable alternative sites. She concluded in paragraph 116 that it was unrealistic to expect the appellants to be able to return to their former sites:

"If the enforcement notice is upheld, and they are evicted from the appeal site, it is likely that they would be living "on the road" and moving from one unauthorised location to another. The lack of availability of suitable alternative sites for the appellants is a matter to which a moderate amount of weight can be attributed."

12. Having set out the personal needs and circumstances of the site occupants she concluded that their personal needs and circumstances were factors to which "a moderate amount of weight can be attributed". So far as human rights were concerned, she concluded that the Council was pursuing a legitimate aim, which could only be safeguarded by the cessation of the use. She considered proportionality later. The sustainability of the development was a factor in support of the appeal, to which "a moderate amount of weight" could be attributed.
13. She then turned to her overall conclusions. These reflected the conclusions that she had already reached. The harm to the Green Belt was a factor to which substantial weight had to be given. The harm to the openness purposes and visual amenities of the Green Belt and the character and appearance of the countryside were factors to which she attributed considerable weight. She attributed considerable weight to the lack of sites, to the immediate unmet need and the absence of imminent change through the development plan process. The personal circumstances of the appellants are all factors to which she attributed a moderate amount of weight.
14. Having considered all those factors together, she came to the view that on the particular facts of this case:

"the material considerations in support of the development do not, either on their own or in combination, clearly outweigh the harm to the Green Belt and the other harm identified. They do not amount to very special circumstances in the context of this case."

She then turned to the question of temporary planning permission, for which a three-year period was proposed by the appellants. She referred to Circular 01/2006 at paragraph 45 in this context. She did not suggest in paragraph 135 that she was giving it any less weight, notwithstanding the passages in paragraphs 3 and 4 of the report earlier. She said that in the circumstances:

"substantial weight must be given to the unmet need for Gypsy sites in considering whether a temporary planning permission is justified."

That is the language of the circular itself. However, she then concluded:

"137. The harm resulting from a temporary planning permission would not endure permanently. However, this harm would be serious and would strongly outweigh all the other considerations, despite the proposed temporary period. The expected changes to planning circumstances that are likely to occur over the period of the temporary permission do not significantly alter the overall balance in this case. The other considerations in support of this appeal, either on their own or in combination, do not amount to very special circumstances, even for the temporary period sought. The dismissal of this appeal, subject to an appropriate extension of the compliance period for the enforcement notice, would not have a disproportionate impact upon the appellants."

Finally she dealt with ground G.

15. The Secretary of State's decision letter adopted her reasoning and conclusions, and there is no need to set any of it out, save for paragraph 10 where the Secretary of State set out his own view on Circular 01/2006:

"Although he has taken account of Circular 1/2006: Planning for Gypsy and Traveller Caravan Sites as a material consideration in his determination of this case, he has also taken account of his announcement on 29 August 2010 of his intention to revoke it as he considers it to be flawed. He therefore gives less weight to the Circular. The Secretary of State's announcement was considered at the Inquiry (IR3-4), and he is satisfied that this is not a matter on which he needs to refer back to parties for further representations prior to reaching his decision."

16. The Secretary of State's announcement that he was intending to revoke Circular 01/2006 commences with the heading: "Time for a fair deal for the travelling and settled community". Mr Eric Pickles said that:

"Travellers who play by the rules will get the same rights as other mobile home residents ... At the same time top-down Whitehall planning rules on travellers which Ministers believe has [sic] undermined community cohesion and harmed the countryside will be scrapped."

Two paragraphs further on under the heading "Abolition of Whitehall guidance" the announcement said:

"The Government has already freed councils from the top-down Regional Strategies and the associated targets; this now allows councils to decide for themselves how many traveller pitches are necessary in their area according to local need and historic demand.

Following through on this policy, Ministers are today announcing their intention to revoke what they regard as flawed Whitehall Planning Circulars on travellers. The planning rules have been criticised by many local councils, some of whom have said this has compelled them to build on the countryside and compulsorily purchase land:"

Ground 1

17. Mr Willers contends that the Secretary of State acted irrationally in this case in giving less weight to the circular since he had not withdrawn the circular and it remained in force, and it was impossible to predict what parts of the circular might be amended or replaced as at the stage of his decision letter. Mr Willers, for the appellants, recognised that as a matter of principle a prospective change to planning policy was capable of being a material consideration. That is indisputable (see paragraph 20 of Cala Homes (South) Limited v the Secretary of State for Communities and Local Government [2011] EWCA Civ 639 per Sullivan LJ).
18. It is also accepted by Mr Willers that if it is capable of being a material consideration then the weight that should be given to it is a matter for the planning judgment of the decision-maker, but he points out that that does not mean that the planning judgment has no legal constraint on it at all. As the decision of Cala Homes makes clear, there may be cases in which the weight that is given by a decision-maker to a material consideration may be such that it is irrational (see, for example, paragraph 33 in the Cala Homes decision).
19. The two factors which Mr Willers relies on here to say that giving less weight to the circular was irrational, do not, in my judgment, demonstrate his point. It cannot be the case that the circular had to be withdrawn and the planning decision proceed without the policy at all, in order for reduced weight to be given to it. In those circumstances, no weight could be given to the revoked Circular. It is impossible to see why an intention to revoke a Circular cannot lead to reduced weight being given to it. It would be quite wrong to say that a circular had to be withdrawn before it had less weight given to it. That is a contradiction in concept.
20. Likewise I do not consider the fact that the government has not made clear, at least as at the time of the hearing, what parts of the circular might remain, what parts might be wholly removed, or what might be qualified, means that it still had to receive full force and weight as if there were no intention to replace it. In my judgment it is perfectly rational for a Secretary of State to say, as does the Secretary of State here, that Circular 01/2006 is a flawed policy, to which he will give less weight, albeit that it remains a policy in force and not revoked. He does not have to identify the particular errors in it in order to reach that judgment lawfully, nor does he have to identify what will replace it in order to reach that judgment. He is entitled to say that he will give it less weight.
21. Mr Willers was on more promising ground when he contended that neither the Inspector's report, nor the Secretary of State's decision letter, provided legally sufficient reasons for his decision. It was said rightly that between the passages where the Inspector and the Secretary of State had said that they were going to give less weight to the circular, and the conclusions to which they had come, there was nothing which explained the interaction between giving less weight to the circular and giving substantial, moderate or considerable weight to the various factors which were put into the balance at the end of the report and decision.
22. In my judgment the Secretary of State is not bound to explain the particular way in which, on any particular point, the giving of less weight to the circular has affected the decision. The full weight of the circular is not a starting point against which the decision has to be explained and justified, so that one can see what the position would be with and without the circular.
23. The position in law is this: the Secretary of State is required to give sufficient reasons so that his decision on the principal issues in controversy are clear. In expressing herself in the way she did the Inspector made clear what her conclusions were on the principal issues in controversy. Taken by themselves, and shorn of the references in paragraphs 3 and 4 to giving less weight to the circular, her conclusions are unimpeachable. The same applies to the Secretary of State's conclusion. All that has happened is that the effect of the Inspector and Secretary of State giving less weight to the circular has been seen in the conclusions to which they have come, and in the expressions of weight given to various aspects which they have described, and to the overall evaluation of the case. As I said, it is not necessary for the Secretary of State, in order to express his reasons lawfully, to set out what the decision would have been had he given greater weight to the circular.
24. In many instances it is difficult to see, I would add, given the language of the report and decision, that giving less weight to the circular has had any significant effect at all. It is not a particularly intellectually coherent way of dealing with policy since there may be a process of reasoning which is concealed within the Secretary of State's mind, and not made explicit, whereby certain aspects of the circular, which he regards as more flawed than others, have been given less weight than those which he regards as wiser, but that degree of imperfection does not amount to an error of law in the reasoning. It cannot be said that he has provided legally inadequate or insufficient or insufficiently clear reasons for his conclusions on the principal issues. It is perfectly clear what they are and why they are what they are. In any event, it would be impossible for the appellant to show that she had been prejudiced by any deficiency in the light of the reasoning that was actually given.
25. The third ground raised by Mr Willers concerns PPS3. The Inspector referred to PPS3 in paragraph 11 of her report. She included it among a number of policies emanating from the government:

"Relevant Government Guidance is found in ... Planning Policy Statement 3: Housing (PPS3)..."

There are five other policy statements referred to followed then by Circular 01/2006. The Inspector does not return to PPS3 later in her report.

26. The Secretary of State makes no reference to PPS3 in his decision at all. PPS3 had been raised at the hearing by the appellant's consultant who said in one paragraph, curiously under the heading "Matters of Discrimination", that paragraph 71 of PPS3 referred to a realistically deliverable five-year supply of sites for housing for which the Local Planning Authority was fulfilling its duties so far as the settled population was concerned. He said that no such similar supply of sites is available for Gypsies and Travellers, even though they were described as a form of housing in PPS3.
27. The circular made it clear that decision-makers should look favourably at proposals for housing, which include Gypsy caravan sites, when no such supply exists as here. If it is material, it is clear from the Secretary of State's acceptance of the Inspector's conclusions that as there was an immediate unmet need there could not have been a five-year supply of Gypsy caravan sites.
28. It is therefore contended by Mr Willers that the Secretary of State has ignored this policy. He has ignored a factor telling in favour of the grant of planning permission and has offered no adequate reasons for failing to take it into account, or for any conclusions on it which he reached.
29. Mr Phillpot, for the Secretary of State, does not say that PPS3 has no relevance at all to the provision of Gypsy and Traveller sites. He does, however, contend that paragraph 71 has no relevance. Paragraph 71, he submits, deals with the requirement to demonstrate a five-year supply of deliverable sites for housing in the narrow sense and does not require Local Planning Authorities to demonstrate a five-year supply of land specifically for Gypsy and Traveller sites. He also contends that, even if it did apply, the requirement to look favourably upon a planning application, in such circumstances, added nothing to the requirement in the circular to the effect that unmet needs were a significant factor telling in favour of a grant (particularly in relation to a temporary permission), which is the way the Inspector and the Secretary of State approached the matter.
30. It is necessary to say a little about how PPS3 is structured, because, on the face of it, by its title and by much of its content it is incapable of applying sensibly to the provision of pitches for Gypsy and Traveller caravan sites, not least because one important aspect is different as between housing provision and Traveller site provision, where there is an unmet need which can be dealt with through the development plan process. That is because temporary planning permission is a feasible solution, as an interim or transitional provision, as Circular 01/2006 makes clear in paragraph 45 for a Gypsy caravan site, but would be an absurdity if applied to bricks and mortar accommodation. One is moveable and the other is not.
31. The references, to which Mr Willers took me, as part of his contention that paragraph 71 applied to his case, include the reference in paragraph 21 under the heading "Achieving a mix of housing", to the role of Regional Spatial Strategies. These should set out the region's approach for achieving a good mix of housing:

"Local Planning Authorities should plan for a mix of housing on the basis of the different types of households that are likely to require housing over the plan period. This will include having particular regard to:

The diverse range of requirements across the area, including the need to accommodate Gypsies and Travellers."

PPS3 has a footnote at this point to Circular 01/2006.

32. Paragraph 11 of PPS3 introduces the need for what is called an "Evidence-Based Policy Approach" to "Local Development Documents and Regional Spatial Strategies Policies". The evidence base should be provided through a Strategic Housing Market Assessment and a Strategic Housing Land Availability Assessment. Footnotes refer to Annex c to the circular. In Annex C the Strategic Housing Market Assessment should, amongst other matters, identify the:

"accommodation requirements of specific groups such as, homeless households, Black and Minority Ethnic groups, first time buyers, disabled people, older people, Gypsies and Travellers and occupational groups such as key workers, students and operational defence personnel."

33. Because paragraph 71 refers to favourable consideration being given to planning applications for housing where there is less than a five-year supply of deliverable sites, Mr Phillpot draws attention to how it is that the five-year supply of deliverable sites is to come about. There is a specific process. Paragraphs 32 to 35 identify how Local Authorities and the Regional Planning Bodies should take account of various matters, including the local and sub-regional evidence of need and demand set out in Strategic Housing Market Assessments. By paragraph 34 the Regional Spatial Strategies should set out the overall level of housing provision to enable planning authorities to plan for housing over a period of at least 15 years.
34. Under the heading "Delivering a flexible supply of land for housing" the Local Planning Authorities are enjoined at paragraph 45 to set out the plans that will enable continuous delivery of housing for at least 15 years from the date of adoption. In paragraph 54 it says:

"Drawing on information from the Strategic Housing Land Availability Assessment and or other relevant evidence, Local Planning Authorities should identify sufficient specific deliverable sites to deliver housing in the first five years."

Having then set out that sites should be available, be suitable, and be achievable, the policy says that [being achievable] means that there should be a reasonable prospect that housing will be delivered on the site within five years. By paragraph 57:

"Once identified, the supply of land should be managed in a way that ensures that a continuous five year supply of deliverable sites is maintained ie at least enough sites to deliver the housing requirements over the next five years of the housing trajectory."

The housing trajectory, as I understand it, is an assessment of the flow of housing that is required to meet the pattern of development to meet the housing need over 15 years.

35. It is clear, therefore, that the references to the five-year supply in paragraph 71 relate to the 15 and five-year supply derived from the Regional Spatial Strategy and the Development Plan Documents. Mr Phillpot contends that when one examines the figures of the Regional Spatial Strategy of 2008 the policies deal entirely separately with housing and with Gypsy pitch provision. The five-year assessment is set out in Policies H1 to H5. The Gypsy site provision in H6 is different and separate. It therefore follows, submits Mr Phillpot, that the five-year supply relates exclusively to housing other than by Gypsy site provision.
36. Assessment of the need for Gypsy site provision is dealt with in a different manner under Circular 01/2006 with a Gypsy and Traveller Accommodation Assessment, which feeds into a Regional Spatial Strategy; that may or may not redistribute locally arising needs differently across a region or sub-region. The then locally derived figures have to be taken forward through the site identification in Development Plan documents.
37. It is my judgment that although there are some references to pitches for Gypsies in PPS3, and it is not necessary for me to decide what other parts of PPS3 may apply to Gypsies, (I note Mr Willers may contend in some other case that the affordable housing provisions might also apply,) it is abundantly clear that paragraph 71 does not apply. Paragraph 71 is dealing with the provision of bricks and mortar accommodation for permanent accommodation assessed through the RSS and DPDs. It is not, in my judgment, dealing with pitch provision.
38. It is perfectly clear that it cannot work sensibly if it is said to operate in the way which Mr Willers contends. If paragraph 71 applies there would have to be two separate sets of figures, because, as Mr Willers' witness suggests, it would not be realistic to say that paragraph 71 did not apply if there was a five-year supply of housing other than for Gypsy sites, and therefore there was no significant unmet need for Gypsy sites, if indeed there was as here an unmet need which required the provision of Gypsy sites.
39. It follows that there would have to be two separate assessments and two separate requirements set out in paragraph 71. Conversely, supposing, although I appreciate that this is by far the more unlikely situation, there were a surplus of Gypsy sites and a shortfall of housing, could it possibly be that those who were seeking bricks and mortar amongst the settled community could be told that their needs could not be met because there was a surplus of Gypsy and Traveller caravan pitches.
40. It is also clear that the favourable consideration required to be given in paragraph 71 to housing has to be seen differently given, as I have already said, temporary accommodation for Gypsy caravan pitches is different in from permanent housing precisely because one is moveable and the other is not. I do not begin to dwell on the difficulties that arise when one bears in mind that an important component of meeting the needs of Gypsies and Travellers is not permanent accommodation, but transit sites.
41. Accordingly I do not consider that PPS3, paragraph 71 has any application. Essentially the specifics of Circular 01/2006 operate in lieu of paragraph PPS3. They are the circulars: the Gypsy and Traveller site specific policy, as the footnote from the general reference to Gypsy and Traveller site needs, in my view, shows. But, if that be wrong, the omission to consider PPS3 is of no consequence. Both Circular 01/2006, paragraph 45 and PPS3, paragraph 71, if the latter applies to Gypsy pitches, would be considering the question of: "How significant is it that there is a shortfall in pitches?" There is an unmet need. Both of them are saying, in respect of the same group of people, that an unmet need is a significant factor telling in favour of a temporary or even a permanent permission. It is the same point. It may have, if Mr Willers is right, two different sources, but they are not to be added; they are merely different documents making precisely the same point. There is no difference in substance between a requirement that significant weight be given to an unmet need, and a requirement that favourable consideration be given to a planning application where such unmet need exists.
42. Accordingly it is my judgment that the decision in relation to the way the Secretary of State has approached, or not approached, PPS3 is immaterial, even if it is in error, and I would certainly not quash the decision on account of that. The answer would inevitably come back in precisely the same way saying exactly the same points are covered by PPS3 as are covered by Circular 01/2006.
43. It is evident from the passages in the Inspector's report, adopted by the Inspector, that in relation to a permanent permission at paragraphs 123 to 133, and in relation to a temporary permission at paragraph 135, considerable weight was given to the former and substantial weight to the latter, which can be no different from the effect which they would have had had the Inspector couched her language in the words of PPS3.
44. For those reasons, and notwithstanding Mr Willers' advocacy, this claim is dismissed.
45. MR PHILPOTT: My Lord, I am grateful for that, and I am also sure I speak for Willers himself in expressing our gratitude for your Lordship giving the judgment this afternoon. That is extremely helpful. I do have an application to make for an order that the claimant bear my client's costs. There is a summary statement of costs that has been submitted.
46. MR JUSTICE OUSELEY: I do not think I have it.
47. MR WILLERS: I have no issue with the principle, nor the figure, my Lord.
48. MR JUSTICE OUSELEY: Are you --
49. MR WILLERS: Not legally aided. So I am not asking for the usual order in terms of any assessment.
50. MR JUSTICE OUSELEY: If you are not legally aided you are content with the figure?
51. MR WILLERS: Yes.
52. MR JUSTICE OUSELEY: I just make an order by the claimant in the sum of £6,677.
53. MR WILLERS: I hesitate to rise. I have not had an opportunity to take instructions as to what those sitting behind me, more particularly my client who is not here, might think of the decision.
54. MR JUSTICE OUSELEY: She will not like it.
55. MR WILLERS: She will not like it. We are very grateful for you having given it today. It might take a little bit of explaining outside the court today. Can I ask in the round for permission to appeal in respect of both grounds 2 and 4, but I accept entirely that there is no prospect on ground 1?
56. MR JUSTICE OUSELEY: I am going to refuse you permission. I think upon analysis there is not sufficient in those points to give you a reasonable prospect of success.
57. MR WILLERS: Thank you very much, my Lord, anyway for considering the decision. I do not think we have any other applications.