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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Delaney v Secretary of State for Communities and Local Government & Anor  EWCA Civ 585 (23 May 2013)
Cite as:  EWCA Civ 585
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ON APPEAL FROM QUEEN'S BENCH (ADMINISTRATIVE COURT)
MR JUSTICE HOLMAN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE McCOMBE
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT &
BASILDON BOROUGH COUNCIL
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Stephen Whale (instructed by the Treasury Solicitor) for the First Respondent and
Melissa Murphy (instructed by Basildon Borough Council Legal Department) for the Second Respondent
Hearing date: 13 May 2013
Crown Copyright ©
Lord Justice Goldring :
The ground of appeal
The legal framework
"Every local housing authority shall consider housing conditions in their district and the needs of the district with respect to the provision of further housing accommodation."
"The appropriate person [the Secretary of State] may-
(a) require a local housing authority to have a strategy in respect of such matters relating to housing as [he]…may specify…"
"(1) Every local housing authority must, when undertaking a review of housing needs in their local district under section 8 of the Housing Act 1985…carry out an assessment of the accommodation needs of gypsies and travellers residing in or resorting to their district.
(2) Subsection (3) applies where the local housing authority are required under section 87 of the Local Government Act 2003…to prepare a strategy in respect of the meeting of such accommodation needs.
(3) The local authority who are that local housing authority must take the strategy into account in exercising their function…
…(5) In this section…
(b) "accommodation needs" includes needs with respect to the provision of sites on which caravans can be stationed…"
"Where a proposal relates to a building or use which the applicant is expected to…continue only for a limited period…because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified…"
"a)…to reduce the number of unauthorised encampments…and to make enforcement more effective…
b)…for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively…
e)…to identify and make provision for the resultant land and accommodation requirements…
f)…to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to…
i) to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to."
"45. Advice on the use of temporary permissions is contained in paragraphs 108-113 of Circular 11/95…Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is an unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting temporary permission.
46. Such circumstances may arise for example, in a case where a local planning authority is preparing its site allocation DPD [Development Plan Document]. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified."
The Inspector's decision
"…the proposal is inappropriate development in the Green Belt, a matter upon which the parties concur."
"…the proposal leads to loss of Green Belt openness and undermines three of the purposes of including land in the Green Belt. On its own the site's harm to the Green Belt could be seen as small scale. However, in the wider context of the purposes of Green Belt designation and particular vulnerability of the area, the harm is substantial."
"The other considerations to be taken into account are principally (i) the need for provision of gypsy sites; ii) the appellants need for accommodation and alternative options; and (iii) the other personal circumstances of the appellant and his dependants."
"…Policy H3 within the single issue revision to the RSS [Regional Spatial Strategy] contains minimum targets for the provision of additional gypsy pitches for the period 2006-2011. For Basildon District the requirement is for 62 additional pitches for the period. The provision was based on the need arising from natural growth, overcrowding on existing authorised pitches and from those currently resident on sites without planning permission.
23….[the Council] remains of the view that the large number of unauthorised sites in the District is a reflection of the availability of small individually-owned plots of relatively cheap Green Belt land and should not be used as a means of assessing need.
24…Policy H3 remains the only development plan policy basis for need and still carries weight in determining the provision that ought to be made for gypsy pitches. Whilst I note the basis for the Council's dissatisfaction with the assessment of need and that the Green Belt is a significant environmental constraint in the District, the RSS and supporting Gypsy and Traveller Accommodation Assessments…are the best available evidence before me for assessing need…the figures to an extent reflect the Council's duty to meet locally generated need for sites arising from those families residing and resorting to the area on the Basildon public site or the authorised private sites in the District. In addition further provision will need to be made to meet the need beyond 2011.
25. The Council has not sought to progress any Development Plan Document (DPD) or other method of meeting the need since…2006…Instead it has concentrated its efforts on dealing with the significant number of unauthorised pitches within the District. As a result the only new provision within the period 2006-2011 has been one plot granted on appeal. The Council estimated at the Inquiry that the process of revised assessment of need, site search, allocation and provision would take up to 3 years. There appeared to be no prospect of earlier provision through the bringing forward of a DPD in advance of the Core Strategy. Based on the evidence and my experience a more realistic timetable for provision would be closer to 5 years.
26. I conclude that, despite the state of flux in the policy position, there is an unmet need for gypsy sites in the area. That need will not be met by planned provision by the council in the foreseeable future. In the meantime provision to meet the need will rely on the granting of planning permissions for private sites."
"Although there is a need to provide a settled base for the appellant and his family, the case for choosing the appeal site is not compelling. The appellant's ties to the Basildon area are not significant. The area of search for a site could be fairly wide. Other private sites may be difficult to find, particularly in Essex where the Green Belt is extensive. There is no burden of proof on the appellant to prove that there are no alternative sites. However, it seems to me that alternative options to meet the appellant's accommodation needs have not been fully explored. Overall I conclude that it is likely that an alternative site could be found which would be less harmful than the appeal site and which is also likely to be affordable and suitable."
"39…inappropriate development in the Green Belt should not be approved, except in very special circumstances…Very special circumstances will not exist unless the harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by the other considerations.
40. I attach substantial weight to the harm to the Green Belt arising from inappropriate development, loss of openness and conflict with three of the purposes of including land in the Green Belt…
41. In terms of those considerations in favour, I am satisfied that the appellant has traveller status which brings into play traveller policies. There is a need for more gypsy sites in the District. This need will remain to some extent…Due to the timetable for the [Core Strategy] and any DPD, provision to meet the existing need will have to be met by the grant of planning permissions for private sites. The unmet need for gypsy and traveller sites weighs in favour of the grant of planning permissions.
42. I attach some weight to the need to provide a settled base for the appellant and his family…There are no strong family or personal reasons to support the choice of this particular site. Therefore I attach limited weight to the need to locate on the appeal site…
44. Taking all relevant matters into account I conclude that the substantial harm to the Green Belt including to its visual amenities is not clearly outweighed by the other considerations I have identified. Therefore, very special circumstances do not exist to justify development…
45. I have considered whether a temporary permission could be granted as such a course of action would prevent permanent harm and would provide an extended period for finding an alternative site. However, the site has already had the benefit of temporary planning permission and has been occupied on and off for more than 8 years. A further period of occupation would perpetuate the harm for an unacceptable length of time which would not be outweighed by other material considerations. As there is no realistic prospect of planned provision in the foreseeable future a condition limiting the period for which the permissions to be granted would not be appropriate. …"
"53. On the facts of the present case, the inspector clearly did recognise both the duty and the failure to discharge the duty. See paragraph 24 of his decision letter which refers to the duty and the conclusion at paragraph 26…that the council will not discharge that duty in the foreseeable future.
54…I agree with Miss Murphy [on behalf of the Council] that those conclusions should properly be read across into paragraph 45 dealing with temporary permission and the inspector did not need in paragraph 45 to repeat express reference to breach of statutory duty.
55. In any event, I also agree with Mr. Whale [on behalf of the Secretary of State] that the fact of a breach of statutory duty by [the]…Council adds nothing on the facts of this case since, as the inspector found, the appellant's ties to the Basildon area are not significant…
56. For similar reasons, I also reject Mr. Cottle's third…point; namely that the lack of policy by Basildon in relation to gypsies and travellers impacts upon the assessment of proportionality. The inspector gave express consideration to proportionality in paragraph 46 of his decision letter. It is true that in that paragraph he did not expressly advert to the absence of a policy, but even if he had done so, the answer would have been the same. The appellant has no particular connection with the Basildon area and can look much further afield."
The appellant's approach to temporary permission at the hearing
Mr. Cottle's submissions
"The lack of an assessment of needs under section 225 of the Housing Act 2004 and so a breach of statutory duty is a factor to which I give significant weight."
"…A case against development being advanced by a Council who relied on its own failure to advance Government policy on the identification of pitches is a significantly weaker one than a case advanced by an authority which is doing what it can to identify provision…"
"…a strategy for sites…would assist the need argument on other sites…"
Lord Justice Aikens:
Lord Justice McCombe
I also agree