Mon, 15 Mar 2010
CHANGE OF USE : FLOOD RISK : GREENFIELD SITES : LOCAL AUTHORITIES : PLANNING INSPECTORS : PLANNING PERMISSION : REASONS : TRAVELLER SITES : SPECIAL CIRCUMSTANCES JUSTIFYING DEPARTURE FROM PRESUMPTION AGAINST DEVELOPMENT ON DESIGNATED GREEN BELT LAND : ADEQUACY OF INSPECTOR'S DECISION
The grant of planning permission for a change of use to provide a gypsy and traveller site on designated green belt land was appropriate where the planning inspector, in a careful, reasoned and balanced judgment, had found there were very special circumstances which outweighed the presumption against inappropriate development, including the recurrence of a severe and life threatening flood risk at an existing, privately owned gypsy site.
The appellant local authority appealed against the decision of the first respondent secretary of state allowing the appeal of the second respondent (S) against the local authority's refusal to grant him planning permission for the development of certain green belt land. The development proposed was a change of use to provide eight static caravan pitches, constituting a gypsy and traveller site, for permanent occupation by S and his extended family, who were all Romany gypsies. The privately owned gypsy site they had been occupying had suffered sudden and severe flooding on more than one occasion necessitating their relocation. The flooding resulted in the families on the site losing some if not all of their living accommodation and possessions. The site remained a flood risk area. The local authority had refused S's application to develop the alternative site for occupation and S's appeal against that decision was dealt with by way of a hearing before the secretary of state's inspector. It was common ground that, as the proposed site was designated green belt under the local authority's unitary development plan, very special circumstances would have to be demonstrated by S to outweigh the presumption of inappropriate development resulting from the proposed development of the appeal site. The inspector found that the flooding on the original site had had a severe impact on S's family, several of whom were elderly with significant health problems, and he noted that there were also a number of children on the site aged between six months and 13 years. He found that the proposed change of use would represent inappropriate development but that there was a clear and unmet need for gypsy sites in the local authority's area, and that its existing planning framework was inadequate to meet those needs, with no immediate prospect of that changing. He noted that S's family lived in fear of a recurrence of severe and life threatening flood risk and that, in the absence of an alternative, the appeal site offered S's family a safer environment. The inspector concluded that S had shown very special circumstances and accordingly allowed the appeal. The local authority contended that the inspector had erred in (1) failing to consider the imposition of a planning condition granting planning permission for a limited five year period; (2) noting and taking into account a number of features about the original site, since such features had not been put forward or pursued by S either in writing or at the hearing and accordingly the local authority had been denied the opportunity of addressing the features he noted.
HELD: (1) The inspector's task had been to decide whether or not a permanent permission should be granted. He was not asked to consider whether the grant of a temporary condition would be necessary to make an otherwise unacceptable development acceptable. The inspector had not been satisfied there was a reasonable expectation of sites being available at the end of a five year period and whether they would be available at the end of any longer period would have been a matter of mere speculation which the inspector was not bound to carry out. Even if he had failed to consider the condition making the permission temporary, that did not lead to an inevitable conclusion that his decision was flawed as where a specific condition was raised by a party and would be a possibility, then the inspector should consider it, but if he did not, then that was not automatically a sufficient irregularity to justify interference with the decision made, R (on the application of Ayres) v Secretary of State for the Environment, Transport and the Regions (2002) EWHC 295 (Admin) applied. In the instant case, there was ample material before the inspector to justify his conclusion. (2) Before the inspector, parties had to be given a "fair crack of the whip" and not be deprived of the opportunity to present material by an approach of the inspector which that party did not, and could not have reasonably anticipated, Castleford Homes Ltd v Secretary of State for the Environment, Transport and the Regions (2001) EWHC Admin 77, (2001) PLCR 29 (http://www.lawtel.com/Content/Document.aspx?ID=AC0100699&Context=) applied. In the instant case, the local authority had had a fair crack of the whip on the points raised by the inspector, all of which could reasonably have been anticipated and in many cases were. The inspector's decision letter had to be read as a whole and not scrutinised sentence by sentence or paragraph by paragraph: reasonable latitude had to be allowed. A reasons challenge would only succeed if the party aggrieved could satisfy the court that he had genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision, South Buckinghamshire DC v Porter (No2) (2004) UKHL 33, (2004) 1 WLR 1953 (http://www.lawtel.com/Content/Document.aspx?ID=AC0104411&Context=) followed. Looked at fairly, the inspector in the instant case had provided a careful, well reasoned, and balanced judgment. He had set out the background, listed the main issues and the factors for and against allowing the appeal and carefully considered them. No error could be detected in his approach and the manner and reasoning of his conclusions were open to him on the material presented to him.
For the appellant: Martin Carter
For the first respondent: Sarah-Jane Davies
For the second respondent: Timothy Jones