By CHRIS JOHNSON
Travellers Advice Team (TAT) at Community Law Partnership (CLP)
- Court of Appeal draws attention to "adverse effects of roadside existence upon this Claimant’s health"
- Affect on children's education also mentioned
- Planning inspector "failed to make the relevant findings" and made an "irrational" decision to refuse temporary planning, court hears
- Decision is of huge importance for those who would be homeless if they are refused temporary permission
This case concerns a planning appeal in the Court of Appeal (CoA).
The Claimant below (the respondent to this appeal), Charmaine Moore, is a single parent who owns the site she lives on. She lives there in a mobile home with her three children, aged 14, 13 and 7. She and her family are Romani Gypsies.
Before she moved to the appeal site in July 2010, the Claimant and her children had lived for some 12 years in a caravan situated on the front drive of a rented Housing Association property at Orpington. The house was used only as a day room and the family always slept in the caravan. The Claimant had “an aversion to living in bricks and mortar”.
In March 2010 the Claimant was given notice by the Housing Association to remove her vehicles from the drive of the property. In July 2010 she and her children moved to the appeal site with her mobile home and touring caravan, and her tenancy with the Housing Association was terminated. Immediately after moving onto the appeal site the Claimant made the planning application which is the subject of the present proceedings.
The planning application was refused in September 2010. In late 2010 the council commenced injunction proceedings, which were deferred pending the outcome of the Claimant’s appeal to a Planning Inspector (and thereafter the outcome of the challenge to the Inspector’s decision). The main issues before the Inspector were (a) the effect of the development on (i) the openness of the Green Belt, (ii) the character and appearance of the Green Belt, (iii) highway safety in the vicinity of the appeal site; and (b) whether the harm to the Green Belt by reason of inappropriateness and any other harm was clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development ( see Planning Policy Guidance (PPG) 2: Green Belts ).
The Claimant had applied for permanent and, in the alternative, temporary planning permission. The Inspector refused the appeal on both counts.
Office of the Deputy Prime Minister Circular 01/2006 Planning for Gypsy and Traveller caravan sites stated, with regard to temporary permission:
45. … Where there is 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 a temporary permission. 46. Such circumstances arise, for example, in a case where a local planning authority is preparing its site allocations 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 Claimant appealed to the High Court against the Inspector’s decision under Town and Country Planning Act 1990 section 288 (it is noted in passing that the Ministry of Justice, in their latest consultation paper, Judicial Review: Proposals for further reform, propose that there should no longer be legal aid for such appeals). Cox J found that the inspector’s refusal of temporary planning permission was unlawful. She stated: 74. In circumstances where no alternative sites were available, or likely to become available in the foreseeable future; where injunction proceedings for immediate eviction had already been started; where the inspector found that the Claimant and her children would probably have to leave the site if permission were refused; where there was a recognised risk that the Claimant and her children, once evicted, would have to resort to roadside existence, which would harm the Claimant’s health and cause serious harm to the quality of life of the Claimant and her children; and where there was no evidence that the Claimant, once evicted, would in fact be offered a pitch on one of the Council-run sites or indeed anywhere else in the area, the decision that the other material considerations in this case were not sufficient to clearly outweigh the identified harm and to justify the grant of temporary permission was, in my judgment, irrational.
75. The inspector’s tentative findings, that there was no certainty that the Claimant would resort to a roadside existence, and that the Council may not evict the Claimant before a pitch becomes available, do not save the decision to refuse a temporary permission, when considered in the context of the other findings referred to above. The probability that the Claimant and her children would have to leave the site; the lack of any finding as to where they would go once evicted; and, in particular, the medical opinion as to the adverse effects of roadside existence upon this Claimant’s health, the adverse effects upon the continuity of her children’s education and upon the quality of life for them all cannot in my judgment be said to constitute other than very special circumstances.
78. I accept [the] submission that, in this case, it was incumbent on the inspector, for the purposes of that balancing exercise, to make clear findings as to what would happen in this case once the Claimant was evicted and, in particular, whether it was more likely than not that the Claimant and her children would have to move to a roadside existence or whether, alternatively, they would be offered accommodation on a suitable, alternative site. 79. I do not accept [the] submission that such a finding was not necessary. In my view this issue went to the heart of the balancing exercise required in this case. Nor do I accept his submission that the inspector was not asked expressly to make such a finding and cannot now be criticised for not making it. The Claimant’s case, as expressed in the witness statement she submitted at the hearing, was that the appeal site was her only home and that she and her children had no lawful site where they could park their caravans and live. The whole basis of her case in support of a temporary permission was that she had nowhere else to go.
81. For all these reasons I consider that the inspector failed to make relevant findings, as required, and that his decision to refuse a temporary planning permission to this Claimant was irrational and cannot stand. Alternatively, I consider that his decision on the issue of temporary permission was inadequately reasoned and that, for that reason in addition, his decision cannot stand.
The Secretary of State for Communities and Local Government appealed to the Court of Appeal. Richards LJ, giving the leading judgment, dismissed the appeal. He stated: 22…The inspector cited [Circular 01/2006 paras 45 & 46 ] and acknowledged that substantial weight had to be attached to the unmet needs when considering the question of temporary permission. Cox J was in my view right, however, to go further by spelling out the link between this and the Circular’s stated intention of helping to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative site to move to; and against that background, Cox J was right to scrutinise the inspector’s reasoning with care.
23. I would attach particular importance, as did Mr George QC in his submissions on behalf of the claimant, to the judge’s criticism of the inspector’s failure to make any finding as to whether it was more likely than not that the claimant and her children would have to resort to roadside camping if temporary permission were refused. I agree with the judge that a finding on this issue went to the heart of the balancing exercise required and that it was not sufficient simply to treat it as “possible” or as “no certainty”. 24. If the family was likely to face a roadside existence in the event of refusal of temporary permission, it would involve a far more serious interference with their article 8 rights, especially through the impact on health and education, than if they were likely to obtain alternative accommodation. Thus the issue went to the core of the article 8 analysis. Moreover, the “other material considerations” advanced by the claimant included “the likely outcome of refusing planning permission including human rights considerations” … which underlined the need for a finding on likelihood.
This is an extremely important decision on the question of temporary permission for a Gypsy and Traveller family, the probability of having to resort to the roadside if evicted from their own land and the question of the prevention of homelessness. It goes to the heart of the Government’s own guidance on the provision of sites.
Moore v Secretary of State for Communities and Local Government & London Borough of Bromley  EWCA Civ 1194, 9 October 2013.
For Ms Moore: Charles George QC ( Francis Taylor Buildings) and Stephen Cottle (Garden Court Chambers) instructed by Parminder Sanghera (CLP).
The Travellers Advice Team (TAT) at CLP operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm.
9th October 2013