Planning – Human rights – Change of use – Mobile homes

(1) Theo Langton (2) Ruth McGill v (1) Secretary of State for Communities and Local Government (2) West Dorset District Council: QBD (Admin) (Judge Gilbart QC): 7 January 2009

The applicant travellers (L) applied to quash a decision of the first respondent secretary of state’s inspector, which upheld a refusal of the second respondent local authority to grant L temporary planning permission.

L had applied for the permission for the change of use of land within an area of outstanding natural beauty for the temporary stationing of two caravans. The local authority had issued an enforcement notice requiring residential use of the site to cease and L appealed against that decision. In the subsequent inquiry, the inspector had found that L were travellers for the purposes of Circular 01/2006 and that the proposals would represent a sustainable form of gypsy or traveller site development. He found that there was a need for gypsy and traveller accommodation which would be addressed in a forthcoming document, that L had a personal need for a settled base and there was no evidence of alternative available accommodation at that time. However, he found that the harm to the area of outstanding natural beauty was significant and would not be outweighed by other considerations. He considered that the loss of L’s home would interfere with their rights under article 8 of the European Convention on Human Rights 1950, but that the protection of the public interest could not be achieved by means which were less interfering with those rights and that dismissal of the appeal was necessary and proportionate. L submitted that: (1) the inspector had erred in the way in which he had addressed L’s rights under article 8; (2) the inspector had not addressed the question whether there was a reasonable expectation that new sites were likely to become available, as he had been required to under the circular.

Held: (1) An inspector on an appeal had to act in a way compatible with the convention, but had also to comply with section 70 of the Town and Country Planning Act 1990. However, article 8 rights were not to be addressed discretely. The fundamental question was whether, looking at the decision as a whole, the article 8 rights had been addressed appropriately, R (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15, (2007) 1 AC 100 and Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19, [2007] 1 WLR 1420 applied. That approach was also to be adopted in the field of planning decisions, South Cambridgeshire DC v Gammell [2008] EWCA Civ 1159, [2008] 152(42) SJLB 31 and McCarthy v Secretary of State for Communities and Local Government [2006] EWHC 3287 (Admin) applied. Therefore, the issue of the effect on L’s article 8 rights could not and had not to be addressed without the consideration of the planning merits generally. When addressing material considerations, pursuant to section 70, the inspector had been required to address L’s personal circumstances. In doing so he had had to consider the effect on their family life. The effect of article 8 was to add strength to arguments about personal circumstances. The inspector had had very full regard to L’s personal circumstances and to the inevitable effect that dismissal of their appeal would have on their family life. That aspect of his decision had been properly reasoned and there had been proper treatment of the article 8 issue.

(2) In applying the circular, the inspector had to ask whether: (i) there was an unmet need for pitches; (ii) whether there was any available alternative provision; and (iii) whether there was a reasonable expectation that any new sites were likely to become available at the end of that period in the area which would meet that need. The inspector had dealt with the first and second issues but had made no finding on the third. While his findings had implied that a reasonable expectation existed, he had set out no conclusions. That was an issue which went to the heart of the case and had been expressly raised in evidence before him. If he had said that, however great the need, he was bound to refuse the application because the objectives of the designation would be compromised by the development, relief would not be granted. However, the inspector had not adopted that approach and had instead considered whether the harm to the area of outstanding natural beauty would be outweighed by the considerations which had supported the proposal, which relied principally on the case of need that had been advanced. That amounted to a serious defect in reasoning and in the treatment of L’s case and the decision was, accordingly, quashed.

Application granted.

Stephen Cottle (instructed by Community Law Partnership (Birmingham)) for the applicants; Katherine Olley (instructed by the Treasury Solicitor) for the first respondent; no appearance or representation for the second respondent.