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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 2433 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BRENTWOOD BOROUGH COUNCIL
|- and -
|BALL & OTHERS
MR MICHAEL PAGET (instructed by BRAMWELL BROWNE ODEDRA) for the DEFENDANT
Hearing dates: 22, 23 and 24 June 2009
Crown Copyright ©
The Honourable Mr Justice Stadlen:
"The surrounding rural area is mainly farm land, with the open landscape enhanced by hedgerows and wood lands. Build development is sporadic, typically comprising farmstead and long established dwellings scattered along Chelmsford Road and the network of country lanes. The mobile home, the small out buildings and hard surfaces have given the land a domestic appearance. The hedgerow and trees along the road frontage provide some screening but even so the change in local character is visible from the road and the wider area. The development has resulted in a loss of openness and forms a harmful encroachment in the countryside. It therefore detracts from the most important attribute of the Green Belt and conflicts with one of the purposes of including land within the Green Belt"
Referring to the decisions of the inspectors in relations to Plots 1 and 2 he stated:
"In each case the inspectors found the domestication that had taken place caused serious harm to the Green Belt."
The statutory framework
"(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.
(2) On an application under section (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.
(3) Rules of court may provide for such an injunction to be issued against an person whose identity is unknown.
(4) In this section "the court" means the High Court or the County Court."
"(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried out on, the person who is then the owner of the land is in breach of the notice.
(2) Where the owner of the land is in breach of an enforcement notice shall be guilty of an offence .. ..
(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.
(5) A person who at any time after the end of the period for compliance which the notice contravenes subsection (4) shall be guilty of an offence. …
(8) A person guilty of an offence under this section shall be liable –
(a) on summary conviction to a fine not exceeding £20,000;
(b) on conviction on indictment, to a fine."
The Council's case
The Defendants' case
The approach to the exercise of the discretion under Section 187 B
"The approach to section 187 B
38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a section 187 B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in pre-1998 Act era, 'entirely foreclosed' at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.
39. Relevant too will be the local authority's decision under section 187 B(I) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.
40. Whilst it not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.
41. True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing gipsies from the site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate'- in today's language, proportionate. The approach in the Hambleton case  3 PLR 8 seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under section 6(I) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the pubic interest objective sought – here the safeguarding of the environment – but also that is does not impose an excessive burden on the individual whose private interests – here the gipsy's private life and home and the retention of his ethnic identity – are at stake.
42. I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulate way, the appropriate conclusion should emerge."
"103. A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference [with the Claimant's right under article 8 to respect for his or her home] is more serious than where such a accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation."
"The enforcement system therefore cannot be too rigid. There will always be difficult cases where there is a need to balance the interests of enforcement against the individual circumstances of a business or individual. The system needs to be flexible enough to accommodate such cases, while providing the teeth to secure effective action where it is justified. There will always be disagreement as to where the line is to be drawn. ... There are likely to be two sets of circumstances where [the right to apply for an injunction] will be especially useful. First it can provide an urgent remedy in cases where there is a serious threat to amenity, to deal with either a threatened breach (before a stop notice can be served) or an actual breach (for example, where there are problems in preparing an effective enforcement and stop notice in time). Secondly it can provide a stronger back-up power in cases where the existing remedies have proved, or are thought likely to be, inadequate." (paragraph 15).
"7. The decision whether to grant an injunction is always solely a matter for the court, in its absolute discretion in the circumstances of any case. Nevertheless it is unlikely that the court will grant an injunction unless all the following criteria are satisfied - … (3) injunctive relief is a commensurate remedy in the circumstances of the particular case…Even when all these criteria are satisfied, the court may decide that the circumstances of the case do not, on the balance of convenience, justify granting an injunction. If an injunction is granted, the court may suspend its effect until a specified later date."
"…in assessing what is called 'the balance of convenience' in the decision whether to grant injunctive relief on the LPA's application, the court will have to weigh the public interest (which the LPA represents) against the private interests of the person or people whom the LPA seek to restrain. This differs from, for example, the process of an enforcement appeal where the decision maker is concerned with whether the appeal should succeed on its legal or planning merits. And, even if the court concludes that an interlocutory injunction should be granted, its effect may be suspended for a specified period so that the defendant has time in which to make suitable alternative arrangements for whatever activity is to be restrained. The court may require the plaintiff (the LPA) and the defendant to appear in person at the end of an initial period of suspension of an injunction, so that the balance of convenience can be reassessed." (Paragraph 17).
"The discretion of the court under section 187 B like every other judicial discretion must be exercised judicially. That means, in this context, that the power must be exercised with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. The power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court's discretion should be exercised in favour of granting an injunction from those in which it should not. Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint (City of London Corporation v Bovis Construction Limited  3ALL ER 687, 714) that will point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay… in cases such as these the task of the court may be relatively straight forward. But in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendants."
"But imprisonment in this context is intended not to punish but to induce compliance, reinforcing the requirement that the order be one with which the defendant can and reasonably ought to comply… the Judge was wrong to regard all questions of hardship as "entirely foreclosed" by the Mole Valley 90 LGR 557 and Hambleton  3 PLR 8 decisions, as the Court of Appeal rightly held (paragraph 43)." (paragraphs 32, 41).
"Even if it had previously been possible to ignore great or marked hardship in the exercise of discretion under section 187B – a hypothesis which I do not accept – such an approach is no longer possible. Sometimes, perhaps more often than not, the interference with a Convention right may be justified on public interest grounds. But effective protection of a Convention right requires the court to approach the matter in a structured fashion in accordance with the principle of proportionality. What in the context of the present cases required was explained by Simon Brown LJ in terms on which I cannot improve. He said, at page 1378: "Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought – here the save guarding of the environment – but also that it does not impose an excessive burden on the individual whose private interests – here the gipsy's private life and home and the retention of his ethnic identity – are at stake."Plainly, the protection of the relevant Convention right would not be effectively protected by leaving it to local authorities acting under section 187 B (1) to consider matters of hardship under article 8. It follow that, whatever their earlier status, the reasoning in the Mole and Hambleton decisions are no longer authoritative or helpful." (paragraph 58).
"It is clear that section 187 B gives the court an original jurisdiction which it is to exercise as it thinks right. Subsection (2) states that the court "may" grant such an injunction as the court "thinks appropriate" for the purpose of restraining the breach. Therefore it is not for the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. Moreover the court is as well placed as the local planning authority to decide whether the considerations relating to the human factor outweigh purely planning considerations; the weight to be attached to the personal circumstances of a defendant in deciding whether a coercive order should be made against him is a task which is constantly performed by the court." (paragraph 86).
(1) The principal purpose of the jurisdiction to grant an injunction under section 187 B is to promote compliance with planning law. The power exists above all to permit abuses to be curbed and urgent solutions provided where they are called for. There is an important public interest in securing compliance with and if necessary enforcement of planning law.
(2) An injunction is the most draconian measure available to promote that end. In the ordinary case, absent particular factors pointing to the need for immediate injunctive relief, it is available as a last resort when the other remedies of enforcement notice and prosecution have been tried and found wanting, or at least where there is good reason to believe that if deployed they will be of no effect. The granting of an injunction is more likely to be proportionate where that is the case than where it is not.
(3) The greater the adverse environmental impact of the breach or anticipated breach of planning law sought to be restrained, the greater will be the case for granting an injunction. The planning history of the site is likely to be a relevant factor.
(4) Before deciding to apply for an injunction under section 187 B, it is not sufficient for the local planning authority to conclude that it is the only means of preventing an actual or anticipated breach of planning law. It is in addition necessary for it to consider fully whether there are any countervailing issues of hardship for the defendant flowing from the grant of an injunction and whether the merits of an injunction outweigh any such hardship. Where it has done so and concluded that it is nonetheless necessary or expedient to seek relief an injunction is more likely to be granted since the court must accord respect to the balance which the local planning authority, as the democratically accountable body, has struck between public and private interests. Where it has not done so, an injunction is less likely to be granted.
(5) The discretion under section 187 B is a wide one. At its heart, in a case where hardship is alleged, lies what may be a delicate balancing exercise between the public interest in upholding planning law and protecting the environment and the private interests of the defendant in avoiding undue hardship as a result of being forced, under threat of potential imprisonment, to leave his place of residence together with his family.
(6) In weighing this balance the court is not bound by the balance struck by the local authority, assuming that it weighed these two factors in the balance. It is not the function of the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. The court is as well placed as the local planning authority to decide whether the considerations relating to what Lord Hutton called the human factor outweigh purely planning considerations.
(7) An injunction should only be granted if, in the judgment of the court, having regard to all relevant circumstances relating both to the actual or anticipated breach of planning control and to the personal situation of and any hardship to the defendants and his family, it would be a proportionate remedy. Proportionality requires that an injunction should not impose an excessive burden on the individual whose private interests are at stake, in the case of a gipsy his private life and home and the retention of his ethnic identity.
(8) The following factors may point in favour of granting an injunction: where there has been a history of prolonged or flagrant breach of planning control and persistent non-compliance by the defendant or evidence that he has played the system by wilfully exploiting every opportunity for prevarication and delay; where conventional enforcement measures have failed over a prolonged period to remedy the breach by the defendant of planning control; where there is some urgency in the situation which is sufficient to justify either the pre-emptive avoidance of an anticipated breach of planning control or the immediate removal of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public; where there is clear evidence of suitable alternative accommodation for the defendant and his family.
(9) The following factors may point against granting an injunction: where there has not been a history of prolonged breach of planning control, persistent non-compliance or playing of the system by wilfully exploiting every opportunity for prevarication and delay by the defendant; where conventional enforcement measures against the defendant have not been taken and found wanting; where there is no urgency in the situation (for example because of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public) which is sufficient to justify the compulsory removal of the defendant and his family from a site where they are residing; where the local planning authority failed fully or at all to consider or weigh in the balance the personal circumstances of the defendant and his family and any hardship which might flow from the grant of an injunction; where there is a real prospect of a successful appeal against the refusal of planning permission; where the effect of forcing the defendant and his family to leave the site would or might be to cause hardship or danger to the defendant and his family; where there is no or no clear evidence of suitable alternative accommodation for the defendant and his family.
(10) Unless at the time of giving his/her judgment, the judge would be prepared if necessary to contemplate sending the defendant(s) to prison in the event of a subsequent breach of the injunction, no injunction should be ordered. The court would not be prepared to do so without considering all questions of hardship to the defendant and his family including the availability of suitable alternative accommodation if required to move. The House of Lords did not explicitly identify what other factors the court can or should take into account in considering whether it would be prepared to contemplate sending the defendant(s) to prison in the event of a subsequent breach. In my judgment the court can and should take into account all matters which are material in the particular circumstances of the case. These could include the circumstances leading up to and reasons for the actual or anticipated breach of planning law, the defendant(s)' record of compliance with or defiance of planning law, the extent and gravity of any environmental harm caused or likely to be caused by the breach of planning law sought to be restrained and the prospects of success of any outstanding or proposed application for planning permission or appeal against refusal of planning permission.
(11) In particular the more flagrant and persistent has been the record of ignoring or defying enforcement notices or prosecutions, the greater is likely to be the case for granting an injunction. The less serious and the less persistent such a record has been, the weaker is likely to be the case for granting an injunction.
(12) It is not the function of the Court to second guess or go behind planning decisions already taken by the local planning authority or the Secretary of State on the advice of an inspector.
(13) It is, however, legitimate for the Court when considering whether it is just and convenient to exercise the discretion to grant an injunction and if so when and on what terms to consider whether there is a real prospect that planning permission will be granted or an appeal against the refusal of planning permission will be successful.
(14) In such a case the court has the power to decide to adjourn the application for an injunction until after the result of a planning appeal is known. In my judgment it also has the power to suspend any injunction granted until and unless planning permission is refused or an appeal is unsuccessful. Alternatively in an appropriate case in my view the Court can take its conclusion that there is a real prospect of planning permission being granted into account as a relevant factor when deciding whether to exercise the discretion to grant an injunction at that time. It may be a factor contributing to a decision that the Court would not currently be prepared to contemplate send the defendant to prison in the event of breach of an injunction; or it may be that the court considers that one of the factors outweighing the detriment to the environment and/or the rule of law inherent in refusing an injunction is the hardship or detriment which might flow from requiring the defendant and his family to leave the site with all the consequent disruption to his family life in circumstances where the outcome of an application for planning permission or an appeal against its refusal might hold him entitled to reside on the site and/or carry on the conduct sought to be restrained.
"4. The problem that cases of this kind present, both to planning authorities and to judges, is as acute as it is familiar. It is expressed in a document quoted by Lord Bingham in South Buckingham District Council v Porter  2 AC 558 at 570:
"the basic conflict underlying the "problem" of unauthorised camping is between gypsies/travellers who want to stay in an area for a period but have nowhere they can legally camp, and the settled community who, by and large, do not want gypsies/travellers camped in their midst. The local authority is stuck between the two parties, trying to balance the conflicting needs and often satisfying no-one".
5. The judge is in a similar position. He must be conscious of the duty to uphold the lawful decisions made by the planning authorities. That is an important consideration to which every judge will attach weight. But the judge must also keep in mind the consequences of issuing an injunction to those who cannot comply with it other than by committing a trespass, or offence, upon other land. Those consequences are set out in Hambleton District Council v Bird  2 PLR 8:
"in a case where no alternative sites were available, that would drive the gypsies either onto the roads, into homeless accommodation or, on non-compliance with the injunction, into prison".
Moreover in some cases an injunction may have a disproportionately injurious effect, for instances, by interrupting the education of small children or driving gypsies to a road-side settlement in which their children are liable to be exposed to dangers, particularly from passing traffic; and may create a danger for other road users."
Hardship and the human factor
"…It seems to me that wherever the occupier seeks to rely upon the very fact of his continuing use of land it must be material to recognise the unlawfulness (if such it was) of that use as a consideration operating to weaken his claim. Take this very case and assume the Mrs Porter had been relying on her long period of residence to assert that her removal from the site now would cause her particular hardship beyond that resulting from removal after a substantially short period of occupation; hardship, for example, by breaking a number of local ties and friendships. Such a claim would seem to me to raise issues closely analogous to those arising on an Article 8 claim and to require substantially the same approach to the lawfulness or otherwise of the period of occupation as the European Court adopted in the Chapman case 33 EHRR 399."
"53. A further point should be made. A development without planning permission is one thing: it is unlawful merely in the sense of being in breach of planning control. Where however as here it has been persisted in for many years despite being enforced against, that is a rather different matter: it is then properly to be characterised as criminal.
54. I would find it impossible to say in such circumstances that the unlawfulness of Mrs Porter's prior occupation of the site was incapable of being of material consideration in the case. Whether in fact it was material, however, would depend on the way her hardship claim was advanced. If she was seeking actually to pray in aid her long period of occupation, then to my mind Judge Rich was clearly right to say that the unlawfulness of that occupation would diminish the weight of the case. As it seems to be, however, that really was not the nature or strength of Mrs Porter's hardship claim. The inspector's only mention of her occupation of the site 'for a considerable period of time' appears in paragraph 7 of his decision (see paragraph 15 above) and its consideration there was not as a possible point in Mrs Porter's favour but rather as a possible point against her on the basis that it might have cost her status as a gipsy (although in the event no such contention was advanced).
55. When the inspector came in para 13 of his decision to summarise the very special circumstances of Mrs Porter's case – her status as a gipsy, the lack of an alternative site in the area, and her chronic ill-health – none of these factors appears to have owed anything to the length of her residence on the site; her case would have been no different even had she occupied the site for an altogether shorter period." (paragraphs 52-55).
"Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community"
The prospects of a successful planning appeal
"Nor need the court refuse to consider (PACE Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show." (Paragraph 30).
Lord Bingham did not there limit the context in which the court is entitled to consider the possibility of a successful appeal to the question whether the application for an injunction should be adjourned or an injunction be suspended.
"The upshot is that in my view it would be disproportionate to grant an injunction in this case while there remains a real prospect that an appeal against an enforcement notice or a fresh application by the respondents for the requisite planning permission might succeed. There is such a prospect in the case of the application for temporary planning permission which, I am now informed, is to be the subject of an enquiry that is likely to be fixed for 8 July 2008. It would be disproportionate to grant an injunction at this stage, the effect of which would be to require the respondents to leave the site in the absence of any alternative site provision. …" (paragraph 43).
Although the form of order made by Plender J does not appear from the report of that case, and the language used is not wholly free from doubt, it appears that he declined to grant an injunction rather than that he adjourned the application.
"But I should like to make an observation about what we have been told is the practice of some judges in these gipsy cases. This is that witnesses should be called and cross-examined on planning issues to enable the judge to form a better view of the prospects of success of outstanding planning applications or appeals. I do not think this is appropriate. Nothing which was said in the passages cited by the Chancellor from South Bucks District Council v Porter suggests that this is what the court should do. Indeed, Lord Hutton at paragraph 92 and Lord Scott at paragraph 100 suggest that the court should not do so. Such a course is I think unnecessary to enable the court to form a broad view of planning prospects, which it can and should do from the papers in the same way that the court so often has to do about other contested issues in interim injunction proceedings."
• All existing authorised, and proposed to be allocated, gypsy and traveller sites in Brentwood are in the Green Belt.
• The Council's approach of identifying 5 sites for 15 permanently authorised pitches through their emerging DPD would meet the minimum requirements of the emerging RSS but would not accommodate the needs of the occupiers of 12 temporarily authorised or unauthorised pitches in the Borough.
• The failure of the Council to include provision for this element of local need within the emerging DPD, in the context of the substantial shortages and pressing need for additional provision of residential pitches across the Region will mean that those individuals will either have to await the formulation of gypsy and traveller site DPDs in other local planning authorities, with excess capacity or more generous provision and/or, and in the mean time seek to acquire or extend a planning permission to allow them to remain on their current sites. If they are unsuccessful in this way they are likely to be subject to an enforcement notice requiring them to vacate their site with no suitable affordable alternative being available, the situation facing Mr Sykes here.
• In terms of the likely timing of provision of new sites to meet the needs of Mr Sykes, or other gypsies and travellers living in Brentwood on a 'non-allocated site', at the present time and in the light of the announced approach to be taken by the Council in progressing their Gypsy and Traveller DPD, there is no reasonable expectation of a change in circumstances within a definite and foreseeable period.
"57.Given the widespread and significant shortage of authorised gypsy and traveller sites across the Eastern Region, as discussed above, even if Mr Sykes had unlimited funds and a willingness to move some considerable distance this would not assist him: if there are no available alternative sites (and no party could point to any) then there is little point in making a fruitless search for them. Because of his personal circumstances there is a negligible chance of him being offered a pitch on a Council-owned site, even if one were to become available. He has a reasonable desire to live on a gypsy and traveller caravan site within relatively easy access of his children. Such a site is unlikely to be found in an urban area. While not all of the rural area within 30 minutes drive time of Harlow is in the Green Belt, much of it is, especially the nearer parts, and realistically, almost any alternative, suitable and affordable gypsy and traveller site would be.
58. The enforcement notice against the use of the appeal site as a residential caravan site has come into effect and therefore the refusal of planning permission would make its continued occupation unlawful. The Council's announced intentions, in terms of selected sites, for the Gypsy and Traveller DPD gives no realistic likelihood, for the foreseeable future, of providing Mr Sykes with an alternative site by that means. There is no evidence to suggest that any other local planning authority in the eastern region is as advanced in the preparation of its Gypsy and Traveller DPD as Brentwood and thus provision of an alternative site through the development plan process at a local level anywhere else in the Region is likely to be several years off. Furthermore, when such sites are provided there is likely to be severe competition for any that become available on the open market.
59. As a consequence the effect of a refusal of planning permission in this case would be to make Mr Sykes homeless, with no realistic prospect of an alternative authorised site becoming available to him for the foreseeable future. This would be directly contrary to the Government's key objective for planning for housing: to ensure that everyone has the opportunity of living in a decent home, (circular 01/06 paragraph 1) and intention 12(i) of the Circular: to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to go to.
60. While this section has considered the accommodation needs of the appellant, and his alternative accommodation options were the appeal to be dismissed, many of the findings apply equally to any gypsy and traveller currently living on an unauthorised site in Brentwood, or on an authorised site subject to a temporary planning permission due to expire shortly which is not one of the 'preferred 5'chosen for progression in the DPD. In the light also of the provisions of adopted RSS Policy H3, and the consequences for all of the individuals involved of the approach being taken by Council I give these factors significant weight in favour of this appeal, and not only in terms of Mr Sykes personal situation." (emphasis added)
"65. PPG2 requires me to give substantial weight to the harm by reason of inappropriateness when considering any case of inappropriate development in the Green Belt. In this case it is also necessary to add some limited weight to the harm to openness arising from both aspects of the development, and some additional weight to the harm arising to the local area in terms of adding to what is a relatively high concentration of gypsy and traveller sites and the pressure that is putting on the local community and infrastructure. I find no separate material 'other harm' to the character and appearance of the area.
66. In terms of the relevant other considerations, the development complies with Local Plan Policy CP1, adopted RSS Policy H3, and emerging Policy H4 and the provisions of Circular 01/06, as set out above. I give the broad compliance with development plan and national policy substantial weight. I also give the regional and local shortage of gypsy and traveller sites, the acknowledged urgent need for additional sites and the failure of the Council to include provision for a significant element of local need within the emerging DPD substantial weight. I also give additional significant weight to the absence of any available, suitable and affordable alternative gypsy and traveller site and the consequences of this for Mr Sykes, or any other gypsy and traveller living on a site in Brentwood which does not already have a permanent planning permission or has been selected as one of the five 'chosen' sites for the DPD. Realistically any alternative gypsy and traveller site in the part of Essex will also be in the Green Belt. Taking all these other considerations together, and without going on to consider the detailed personal circumstances of Mr Sykes, I find that they clearly outweigh the harm by reason of inappropriateness, and any other harm as set out above. I have no hesitation in finding that the very special circumstances necessary to justify inappropriate development in the Green Belt exist in this case.
67. In undertaking my duties under Article 8 of the Human Rights Act, I find that the significant interference to Mr Sykes' rights which would occur were the appeals to be dismissed, or granted on a temporary basis only, would be disproportionate to any, and in this case very limited, public benefit arising from such a decision." (emphasis added)