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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 3001 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ROBERT WHITCHER
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|- and -
|(2) NEW FOREST NATIONAL PARK AUTHORITY
Gwion Lewis (instructed by Government Legal Department) for the 1st Defendant
Scott Stemp (instructed by The New Forest National Park Authority Legal Services) for the 2nd Defendant
Hearing date: 13th October 2015
Crown Copyright ©
Mr Justice Dove :
"Policy CP13: Gypsies, Travellers, and Travelling Show people
Proposals for the provision of permanent and / or transit accommodation to meet an established need of Gypsies, travellers and travelling show people will be supported with the National Park where it can be demonstrated that there is a need for the site to be located within the National Park; and
a) the impact of the site on the landscape character of the National Park is acceptable;
b) the site is well located on the highway network and will not result in a level of traffic generation inappropriate for the roads in the National Park;
c) there are adequate on-site facilities for parking and storage;
d) in the case of any permanent site, be located where there are appropriate local facilities (e.g. shops, schools and public transport); and
e) the site does not detrimentally affect the amenities of surrounding occupiers."
"38 The language of CP13 is to my mind perfectly clear. It indicates that the proposals to meet an established need will be supported where it can be demonstrated that there is a need for the site to be located within the National Park. The demonstration of the need for the site to be located within the National Park can no doubt be done in many and varied ways.
39 It may be capable of being done by virtue of certain personal characteristics but it does not follow that it cannot be done otherwise. The essence of the matter is that one has to follow through the terms of policy CP13."
"11.4 A recent joint assessment of Gypsy and traveller accommodation needs in Hampshire was undertaken and identified a projected future need for two pitches in the National Park by 2017.
11.5 However, notwithstanding that, the site also needs to be assessed against the criteria of policy CP13 (which relates to Gypsies and travellers and which has been adopted since the previous permission). Specifically it has to be demonstrated that there is a need for the site to be located within the National Park and then subject to a number of criteria: that the landscape impact is acceptable; the site is well located on the local highway network; the residential amenities of surrounding occupiers is not detrimentally affected; and there are local facilities in the vicinity.
11.6 The precise wording of the policy CP13 has come under scrutiny following a High Court challenge to the (allowed) appeal at Brambly Hedge, Landford. In his decision, the Deputy Judge agreed that, notwithstanding that there may be an assessed need for sites in the wider area of South Wiltshire, it has to be demonstrated that the site must be located in the National Park.
11.7 The temporary site at "Forest View" in Landford has existed since 2004 and meets the specific needs of the present occupant of the site, who has demonstrated a particular affinity with the area – he has worked in the locality and his wife is buried near Romsey. The information accompanying the application is that he intends to remain there "for the remainder of his life". This site is therefore considered to meet the need expressed in policy CP13 and its continued use for Mr Webb and his dependants would therefore be acceptable."
The Inspector's decision
"Interpretation of Policy CP13
8. The appellant interprets the first part of Policy CP13 as being satisfied if there is shown to be a need for sites within the National Park. The NPA interprets it as having two elements both of which need to be satisfied. The first being to establish a generic need and the second to then consider whether a particular site specific proposal needs to be in the National Park
9. I interpret the first part of the policy as having two elements as described by the NPA. National guidance in the PPTS [Planning Policy for Traveller Sites] advises that local planning authorities should prepare and maintain an up-to-date understanding of the likely permanent and transit accommodation needs of their areas over the lifespan of their development plan. A recent accommodation assessment for Hampshire (HTAA) sets out an estimate of projected future need for traveller pitches in the Hampshire districts and in the National Park. It identifies a need for two additional pitches in the National Park for the period up to 2017 but with no further requirement up to 2027. It is a modest notional figure but nonetheless satisfies the requirement that there should be an established need.
10. To satisfy the second element of Policy CP13 proposals that come forward should show a need to be within the National Park. Each proposal has to be assessed individually. The policy is not prescriptive but such an assessment would be likely to include the activities of the proposed occupiers within the National Park, their employment and their family circumstances.
11. Gypsy and traveller development, by its nature, is likely to be harmful to the landscape and scenic beauty of the National Park even though sometimes the individual harm may not be great. By limiting new Gypsy development to that with an established local need, Policy CP13 is limiting harm to the National Park and supporting the NPPF objectives, particularly paragraph 115. The PPTS advises that applications for traveller sites should be determined from any travellers and not just from those with local connections. I consider that the first part of Policy CP13 is properly interpreted as a two stage test, that such an interpretation is in line with national planning policy, and that the policy should be given full weight.
Need for a location in the National Park
12. Mr Whitcher is a Romany Gypsy whose family have a long tradition of living in and around the New Forest. His grandfather was employed as head ploughman in Brockenhurst and his father lived there in an encampment until shortly after the Second World War when he married and moved to conventional housing in Totton on the outskirts of Southampton. Mr Whitcher was born in 1972. He lived with his parents in Totton until he was 17 years old and then with his first partner and their four children in various properties in the Southampton area until they split up. Although he always had a permanent address during this period he travelled regularly throughout the New Forest area, both on his own and with relatives, as well as travelling further afield to sales and horse fairs.
13. In 2010 Mr Whitcher moved in with his partner Ms Foster who lived with her daughter Jasmine and other family members in a house in Calmore, again in the Southampton conurbation. He acquired the appeal site in 2011 as a place to keep animals on but then applied for planning permission for a Gypsy pitch in June 2012. This was refused in August 2012 but nonetheless he moved a mobile home onto the site in September 2012 and shortly afterwards Ms Foster and Jasmine came to live with him.
14. During his adult life Mr Whitcher has taken on various jobs as and when they become available. They included scrap metal dealing, buying and selling horses and casual gardening and labouring work. He is not a New Forest commoner but, with his brothers, helps his father who has commoning rights associated with land he rents outside the National Park near Totton. At present there are four horses on this land and a further four with two foals being grazed in the forest. Commoning is an important tradition in maintaining the New Forest landscape but often the home ground is situated outside the National Park, as is the case with the land rented by his father. Mr Whitcher himself has two horses on land he rents adjacent to the appeal site as well as hens and goats.
15. In summary Mr Whitcher was brought up outside the National Park and, apart from brief spells, has always had a bricks and mortar base outside the National Park until moving to the appeal site. Ms Foster, who is not a Gypsy, works in Downton and her daughter has part time work in the same village but also travels by bus to a college course in Totton. Both locations are outside the National Park.
16. I have no doubt that Mr Whitcher satisfies the planning definition of a Gypsy and that his need for a site is real. His unauthorised occupation of the appeal site for some two years is evidence of this. However this need is a general need for a site and not a locational need. The Whitcher family has strong historical connections with the National Park and some members of the wider family live within its boundaries but this in itself does not amount to a locational need.
17. In the recent granting of a personal permission at Forest View the officer report concludes that the proposal met the locational requirement of the policy CP13 stating that the temporary site… has existed since 2004 and meets the specific needs of the present occupant of the site, who has demonstrated a particular affinity with the area – he has worked in the locality and his wife is buried near Romsey. Whilst I accept that Mr Whitcher also shows some affinity with the National Park his circumstances are very different. The temporary permission for Forest View was first granted before the National Park came into being and under different development plan policies; the report does not indicate what the employment links with the area were; and the site has been occupied with the benefit of planning permission, even if it is temporary, for ten years. On this basis it is of little assistance to compare the two proposals.
18. One of the implications of having a locational need requirement is that it limits the scope for new Gypsy sites. However I do not find this surprising or unreasonable. Development policies in National Parks are generally restrictive. National advice in Planning Practice Guidance (PPG) is that in assessing whether need can be met local planning authorities should take account of any constraints which indicate that development should be restricted and which may restrain the ability of an authority to meet its needs. There are currently no established permanent Gypsy sites in the National Park whereas there are significant clusters of sites in the neighbouring New Forest and Wiltshire Council areas. Historically within the wider region that is where sites have become established and where planning policies have guided new sites. That is undoubtedly where most new provision will be made.
19. I find that, whereas a modest general need for traveller sites in the National Park has been identified, the proposal before me fails to satisfy Core Strategy Policy CP13 which requires it to be demonstrated that there is a need for the site to be located within the National Park. I give substantial weight to the policy harm arising from this conflict."
"Accommodation needs of the appellant
33. This consideration overlaps with an assessment of the proposal against the requirements of Policy CP13. Nonetheless it is a matter that also affects the overall balance. It would be desirable for Mr Whitcher to have a settled base to make it easier for him to have access to his four children. Three of them are now grown up and live a settled existence. The youngest, Adam, is still at school and stays with his father at weekends. A base is also needed because Ms Foster and her daughter do not travel.
34. For the first forty years of his life Mr Whitcher was brought up in, and travelled from, a series of conventional dwellings located outside the National Park. He lived with Ms Foster in a conventional dwelling until family relations became strained and he moved out. I am not persuaded that there is the same imperative for a caravan site base as there would be for someone who has always lived in a caravan. In these circumstances, although Mr Whitcher has a cultural preference for a caravan site, I consider his accommodation needs attract only moderate weight."
35. When Mr Whitcher starting living on the site in September 2012 there was an Enforcement Notice in place. The Council sought an injunction in the High Court and proceedings were adjourned in November 2012 pending determination of this appeal. There has been further uncertainty following the quashing of the first appeal decision. It is not surprising that his doctor confirms that he suffers from anxiety symptoms. Ms Foster also suffers from depression. I do not underestimate the effect of stress and depression on lives but the initial cause of the current situation was the decision to occupy a site in defiance of an Enforcement Notice.
36. If the appeal is dismissed it is likely that the injunctive action would be followed through and Mr Whitcher, Ms Foster and Jasmine would be homeless. It is probable that Ms Foster and Jasmine would move back into conventional housing. It would also be possible for Mr Whitcher to use a conventional property as a base as he has done in the past. It would not necessarily follow, therefore, that the family would need to split up, or that Mr Whitcher would have to resort to a roadside existence although he might choose to do so. Whilst there would be a move to a new location it is reasonable to suppose that it would be within the Salisbury/Southampton area where access to health services would be available, that Jasmine would be able to continue to travel to college, and that both she and her mother would be able to travel to work.
37. I consider the personal circumstances of the existing occupiers of the appeal site add some further moderate weight in support of the proposal.
Conclusion on other considerations
38. General unmet need attracts significant weight. The fact that Mr Whitcher has until recently always operated from a conventional dwelling limits the weighting for accommodation needs to moderate. It would be desirable for Mr Whitcher to be in a settled location for access to health services health (sic) and to his four children, again there is the option of returning to a conventional dwelling and it would certainly be the most likely option for Ms Foster and Jessica. Only moderate weight attaches to personal circumstances.
39. I do not find that the delay in preparing a National Park specific Gypsy and traveller accommodation assessment, the reliance on Policy CP13 or the absence of site allocations to be unreasonable. Therefore failure of policy does not add to the harm in this case."
"25. Subject to the implementation arrangements at paragraph 28, if a local planning authority cannot demonstrate an up-to-date five-year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission."
"45. The PPTS advises that where there is a lack of a five year supply of sites it should be a significant material consideration. However since I find that the appellant does not need a site in the National Park the situation is unlikely to change at the end of any temporary period. This being so, a temporary permission would be contrary to the advice in the PPG. The evidence is that alternative sites would be hard to find and the appellant has limited resources. However in this instance the option of conventional housing would be a realistic option from where the appellant could continue to search for another site. On balance, although harm to the National Park would be limited to a finite period, I consider it would still be substantial and would not be outweighed by other considerations."
46. The NPPF seeks to restrict development in National Parks which would harm their landscape quality. In accordance with this broad objective Core Strategy Policy CP13 limits traveller development to that which needs to be located in the National Park. The proposal does not comply with Policy CP13. Substantial harm arises from this policy conflict and further significant harm as a result of the actual landscape effect on the ground. This harm is not outweighed by other considerations which favour the proposal, namely the wider unmet need for sites, the accommodation needs of the occupiers and their personal circumstances. This would be an unsustainable development contrary to the NPPF and development plan policies set out.
47. Dismissing the appeal would result in Mr Whitcher, Ms Foster and Jessica (sic) losing their home and would engage their human rights to respect for their family life and home. For the reasons set out above I do not consider it would be necessary for Mr Whitcher to take up a roadside existence or for the family to split up, notwithstanding his cultural preference for a caravan. It is in the best interests of Jasmine to have stability in her family life. She and her mother are not travellers and this stability can be provided just as well in conventional housing. There would be no need to disrupt her attendance at college or her employment. Whilst her best interests are a primary consideration they are not determinative and the actual weight to be given to (sic) in the balancing exercise depends on the degree of harm identified. In this case the adverse effects on the accommodation needs and personal circumstances of Jasmine warrant moderate weight.
48. Human rights are integral to considering personal circumstances and accommodation. As such they are already part of the planning balance. Having regard to the alternatives available to the appellant and his dependants and the policy and environmental harm to the National Park I consider dismissing the appeal is the minimum action necessary to avoid the harm and would be proportionate response to this harm.
49. For the reasons given above I conclude that the appeal should be dismissed."
"5. The matter of site-specific need has been properly explored. The appellant has simply not shown that he has a need to be located in the NFNP. What has to be produced to satisfy this test is not limited to questions of local connection. It has been shown that the circumstances of need surrounding the Forest View permission were not comparable. "
"9. In the quashed decision the Inspector was found to have misinterpreted Policy CP13. I cannot say how he would have interpreted the policy if the HTAA information had been produced. My conclusion is that the two stage test is correct because that is the way the first part of the policy is worded. The second part of the test is whether there is a specific need for a site in the National Park. The appellant provided good evidence of his family connections with the area but the NPA was entitled to conclude that, in the absence of relevant previous residence, employment ties or other supporting personal circumstances, this was not sufficient evidence of a local need. In the event I agreed with the NPA.
10. The NPA does not seek to rely on local connections although they are part of a consideration of local need. Restricted policies are appropriate in National Parks and it is not unreasonable that traveller proposals that do not need to be in the National Park are refused."
The claimant's grounds in brief
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(3)Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low."
"96. Nonetheless, although the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws intended to safeguard the assets of the community as a whole, such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in Buckley, the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.
98. The Court does not, however, accept the argument that, because statistically the number of Gypsies is greater than the number of places available on authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the framework convention, and domestic legislations in regard to protection of minorities, that Article 8 can be interpreted as implying for States such a far-reaching positive obligation of general social policy being imposed on States.
99. It is important to recall that Article 8 does not in terms recognise a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being have a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.
100. In sum, the issue to be determined by the Court in the present case is not the acceptability or not of a general situation, however deplorable, in the United Kingdom in the light of the United Kingdom's undertakings in international law, but the narrower one of whether the particular circumstances of the case disclose a violation of the applicant's – Mrs Chapman's – right to respect for her home under Article 8 of the Convention."
"114. In the circumstances, the Court considers that proper regard was had to the applicant's predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting her interests under Article 8 and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her case. The decisions were reached by those authorities after weighing in the balance the various competing interests. It is not for this Court to sit in appeal on the merits of those decisions, which were based on reasons which were relevant and sufficient, for the purposes of Article 8, to justify the interferences with the exercise of the applicant's rights.
115. The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis for a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every Gypsy family has available for its use accommodation appropriate to its needs. Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim pursued."
"15. Mr Ground [counsel for the local planning authority] criticised that last passage as saying that the judge had determined that the offer of conventional housing was in any event irrelevant. Read in the context of the judge's previous explanation of how the matter should be dealt with I do not think that is a fair criticism. What the judge seems to me to be directing the Inspector to, and in my respectful judgement rightly directing the inspector to, is a careful examination of the objections of the Clarke family to living in conventional housing in order to determine the extent to which Article 8 is truly engaged, and the nature of its engagement by the combination of their Gypsy identity and their opposition to conventional housing. Only when the Inspector has made that determination in clearer terms than he adopted in his present letter will it then be possible for him properly to engage in the balancing consideration that Burton J envisages in his paragraph 35 and that the European Court of Human Rights envisages in its paragraph 98."