The Planning Inspectorate Quality Assurance Unit Direct Line: 0117-372-8252 Temple Quay House Switchboard: 0117-372-8000 2 The Square Temple Quay Bristol BS1 6PN http://www.planning-inspectorate.gov.uk
Ms Sharron Wilkinson North Warwickshire Borough Your Ref: Council Atherston Our Ref: APP/R3705/C/08/2088816 Further appeal references at foot of Warwickshire letter CV9 1BG Date: 13 October 2010
Dear Ms Wilkinson
Town and Country Planning Act 1990 Appeals by Hope Taylor, Lisa Taylor and Hope Taylor Site at Wrens Nest (eastern Side), Heanley Lane, Hurley, Atherstone, CV9 2LR, Wrens Nest (eastern Side), Hurley Common, Hurley, Atherstone, CV9 2LR and Wrens Nest Caravan Site, Heanley Lane , Hurley, CV9 2HY
I enclose a copy of our Inspector's decision on the above appeals and the four costs determinations.
If you have queries or complaints about the decision or the way we handled the appeals, you should submit them using our “Feedback” webpage at www.planning- inspectorate.gov.uk/pins/agency_info/complaints/complaints_dealing.htm . This page also contains information on our complaints procedures and the right of challenge to the High Court, the only method by which the decision can be reconsidered.
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Yours sincerely
pp Ben White
EDL1
Further appeal references:- APP/R3705/C/08/2088818 and APP/R3705/A/08/2088454
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The Planning Inspectorate Appeal Decisions 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Inquiry held on 23-25 June, 15 & 19 Bristol BS1 6PN October 2009, 26-29 January 2010 0117 372 6372 email:[email protected] ov.uk
by Paul V Morris DipTP MRTPI
an Inspector appointed by the Secretary of State Decision date: for Communities and Local Government 13 October 2010
Appeal A: APP/R3705/C/08/2088698 Wrens Nest (western site), Heanley Lane, Hurley CV9 2LR • The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. • The appeal is made by Mr J Smith against an enforcement notice issued by North Warwickshire Borough Council. • The Council's reference is PAP/2008/0379. • The notice was issued on 19 September 2008. • The breach of planning control as alleged in the notice is, without planning permission, the change of use of the land from agricultural to a residential caravan site for gypsy families together with the formation of hardstanding areas, access road, parking of motor vehicles, buildings, structures, drainage and fencing associated with the residential use. • The requirements of the notice are to: i. cease the residential use of the land; ii. remove all caravans, motor vehicles, buildings, structures, drainage and fencing associated with the residential use from the site; iii. reinstate the land by breaking up hardstanding areas and access roads associated with the residential use, and remove the resultant hardcore and gravel from the site. Then replace with topsoil to a depth of 400mm across the whole of the area previously laid with hardcore. • The period for compliance with the requirements is six months. • The appeal is proceeding on grounds (a) and (g) as set out in section 174(2) of the Town and Country Planning Act 1990 as amended. The appellant is deemed to have made an application for planning permission for the development to which the notice relates by virtue of s177(5) of the 1990 Act. Summary of Decision: The appeal is dismissed and the enforcement notice is upheld with variation.
Appeals B: APP/R3705/C/08/2088816 & 2088818 Wrens Nest (eastern site), Heanley Lane, Hurley CV9 2LR • The appeals are made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. • The appeals are made by Mr Hope Taylor and Mrs Lisa Taylor against an enforcement notice issued by North Warwickshire Borough Council. • The Council's reference is PAP/2008/0378. • The notice was issued on 19 September 2008. • The breach of planning control as alleged in the notice is, without planning permission, the change of use of the land from agricultural to a residential caravan site for gypsy families together with the formation of hardstanding areas, access road, parking of motor vehicles, buildings, structures, drainage and fencing associated with the residential use.
Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
• The requirements of the notice are to: i. cease the residential use of the land; ii. remove all caravans, motor vehicles, buildings, structures, drainage and fencing associated with the residential use from the site; iii. reinstate the land by breaking up hardstanding areas and access roads associated with the residential use, and remove the resultant hardcore and gravel from the site. Then replace with topsoil to a depth of 400mm across the whole of the area previously laid with hardcore. • The period for compliance with the requirements is six months. • The appeals are proceeding on grounds (a), (f) and (g) as set out in section 174(2) of the Town and Country Planning Act 1990 as amended. Mr Hope Taylor is deemed to have made an application for planning permission for the development to which the notice relates by virtue of s177(5) of the 1990 Act. Summary of Decision: The appeal is dismissed and the enforcement notice is upheld with variation.
Appeal C: APP/R3705/A/08/2088454 Wrens Nest (eastern site), Heanley Lane, Hurley CV9 2LR • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission. • The appeal is made by Mr Hope Taylor against the decision of North Warwickshire Borough Council. • The application Ref. PAP/2008/0378, dated 18 July 2008, was refused by notice dated 16 September 2008. • The development proposed is the change of use to a residential caravan site for three gypsy families. Summary of Decision: The appeal is dismissed.
Preliminary matters
1. The inquiry dealt with conjoined appeals relating to two separate but adjoining sites, with different appellants separately represented. Where possible, I have considered matters common to both sets of appeals together.
Applications for costs
2. At the inquiry, applications for costs were made by the appellants for the eastern site and the appellant for the western site against North Warwickshire Borough Council, and applications for costs were made by North Warwickshire Borough Council against the appellants for the eastern site and the appellant for the western site. These applications are the subject of separate decisions.
3. In addition, North Warwickshire Borough Council submitted correspondence indicating its intention to make an application for costs against a third party to the inquiry, Mr T. Green. Mr T. Green was not present at the conclusion of the inquiry when this intention was made known, and I advised the Council that this matter should be dealt with in writing after the decisions had been issued if it wished to pursue it.
2 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
Revocation of the West Midlands Regional Spatial Strategy
4. The West Midlands Regional Spatial Strategy (RSS) was part of the policy context for these appeals during the course of the inquiry. However, on 6 July 2010 the Secretary of State for Communities and Local Government announced the revocation of Regional Strategies with immediate effect.
5. Guidance was issued on 6 July 2010 by the Department of Communities and Local Government (DCLG) that, in determining planning applications, local planning authorities must continue to have regard to the development plan. This will now consist only of adopted Development Plan Documents (DPDs); saved policies; and any old style plans that have not lapsed. Regard should also be had to other material considerations, including national policy. Evidence that informed the preparation of the revoked Regional Strategies may also be a material consideration, depending on the facts of the case.
6. In the light of that guidance, the appellants and the Council were subsequently asked to comment on the revocation of the RSS as it affects the evidence to these appeals.
7. In summary, the appellant for Appeal A submitted that the revocation has little bearing on whether the appeal development is in line with development plan policy. On the question of local, regional and national need for gypsy and traveller accommodation, the appellant relied at the inquiry on the results of the Southern Staffordshire and Northern Warwickshire Gypsy and Traveller Accommodation Assessment (GTAA), and the revocation of the RSS does not result in a material change in the need identified in the area, or the weight that should be attached to it. Following the revocation, there is no adopted policy framework for sites to be delivered, as RSS Policy CF5 was the only development plan policy relating to the provision of gypsy and traveller sites. This adds weight to the failure of policy to deal with this issue.
8. In summary, the Council submitted that, during the course of the inquiry, the RSS Phase 3 Revision targets for gypsy and traveller sites were only at the stage of options and had not been tested. As a consequence, little weight could have been given to those targets and, furthermore, they were not relied on by the parties to the appeals. The evidence base for the RSS Revision options comprised the DCLG Annual Counts and the GTAA, and they still provide the most up-to-date assessment of the need in North Warwickshire, and are significant material considerations. This is confirmed by the fact that there is no appreciable difference between the RSS Phase 3 Revision targets and those drawn from the evidence base. RSS policy mirrored the approach taken in Circular 1/06, which is still material, and therefore the revocation has little material impact in this respect. The evidence heard at the inquiry can be relied upon as a basis for the decisions.
9. I have taken account of these representations and the DCLG guidance in the decisions.
3 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
Appeals A & B - ground (a) and the deemed applications, and Appeal C
The occupation of the site and gypsy status
10. The cases for the appellants were made on the basis that the appellants and other occupants have gypsy and traveller status for planning purposes in line with the definition set out in Circular 1/06, paragraph 15.
11. The Council did not directly query the gypsy and traveller status but, from the information provided by the appellants, I do not consider the matter to be wholly clear cut. The Appeal A appellant, Mr J Smith, is not an occupant of the western site, his involvement in the land ownership was not properly clarified, and he did not give evidence to the inquiry which might have provided details about any nomadic habit of life, or the reasons for temporary or permanent settlement. I see no basis for finding this appellant to have gypsy and traveller status for planning purposes.
12. The representatives of families who are occupying the western site did give evidence to the inquiry, and it is clear that they have taken advantage of the site becoming available for occupation, I assume through the auspices of Mr J Smith. There were sufficient indications that gypsy and traveller status was appropriate for these families.
13. As for the eastern site, I gathered that Mr Hope Taylor had originally acquired the parcel of land including the western site, but had sold on the western site to Mr J Smith. The Council suggested, with reference to Land Registry documentation, that the Taylor family had occupied a house prior to moving to Wren’s Nest, and that their nomadic habit of life was therefore in question.
14. However, without reasonably conclusive evidence that a nomadic habit of life had not been taking place in the past or been abandoned, I consider that the gypsy and traveller status for planning purposes holds good in the context of these appeals, although I have not accorded the full weight to this consideration which might have been the case if the matter had been clearer.
Planning policy
15. The site is within the Green Belt as confirmed by the North Warwickshire Local Plan (2006) Policy ENV2, which states that permission will not be granted for inappropriate development in the Green Belt, except in very special circumstances. Policy ENV8 relates to the safeguarding of water resources.
Main issues
• the impact of the development on the Green Belt;
• sustainability;
• flood risk;
• the need for and provision of sites for gypsies and travellers;
• the appellant’s accommodation needs, and the availability of alternative sites;
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• The overall balance, including whether there are material considerations which clearly outweigh harm from inappropriate development and any other harm identified, so as to amount to very special circumstances to justify the grant of planning permission.
Reasons
The impact on the Green Belt
16. Circular 1/06 states that new gypsy and traveller sites in the Green Belt are normally inappropriate development. Whilst the word ‘ normally ’ would indicate that there may be exceptions, I can see no reason in this case why this should be so. In my view, this is confirmed by applying the test in Planning Policy Guidance Note (PPG)2, paragraph 3.12, that the making of material changes in the use of land are inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt.
17. It was acknowledged by the eastern site appellants that the development results in loss of openness, and encroaches into the countryside. The western site appellants maintained that the development is relatively small scale, whilst accepting that it has a limited impact on the openness of the Green Belt.
18. The eastern site is divided into three extensive plots, one between Heanley Lane and the watercourse flowing east-west and, at the time of my visit, occupied by a touring caravan, another plot to the south of the watercourse occupied by a touring caravan and a shed, and a further plot adjacent to the south occupied by 2 touring caravans. There are hedges around the plots which I gather may have originated from the previous layout as a caravan and camping site. The eastern site is separated from the western site by the access, surfaced in chippings.
19. The western site has a surfaced track leading from the access and serving eight plots. There are five plots on the northern side between Heanley Lane and the track, divided by low hedges and some fencing. At the time of my visit, four of these plots were occupied by eight touring caravans in total, and some small sheds. The fifth plot beside the main access was unoccupied. There are three plots to the south of the track, bounded by the watercourse on the southern edge which is lined with hedge trees. On the western end of these three plots is a further plot-sized open area which I was told was reserved as a paddock. The north-south watercourse runs down the western boundary. At the time of my visit, these plots were occupied by a four touring caravans in total and two small day-room wooden buildings. Most of the western site plots were surfaced with chippings or gravel, and there was evidence of some land raising with a length of retaining wall on the southern boundary alongside the watercourse.
20. There is a strong hedge along the sites boundary with Heanley Lane, and the sites are in a shallow valley with the surrounding open land rising gently to the north beyond Heanley Lane and to the south.
21. The development on each site has significantly diminished the openness of the area. The sites are in a predominantly rural scene with no other development close by, and, in my view, there is severe encroachment into the countryside which is readily noticeable. The western site has a substantial concentration of
5 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
caravans, associated sheds, hard surfacing, fences, vehicle parking and domestic paraphernalia, all of which contribute to the encroachment. I acknowledge that the eastern site is less intensely developed, with a smaller number of caravans and no hard surfacing and existing hedging between the plots, but this scale of development still results in a marked loss of openness in an otherwise undeveloped locality.
22. As for the visual impact, I consider that, only rarely, will a caravan site blend well with the local scene, and it cannot be said that this is the case here. In close view, the caravans and associated trappings, and, on the western site the additional extensive hard surfacing and the fencing, are stark features, with no obvious acknowledgment of the rural location. There is substantial boundary hedging which goes some way to screening the development, but there are clear views into the sites from Heanley Lane, and of both sites from the higher points of Heanley Lane approaching from Hurley, and from the public footpaths which run across the higher fields to the north of the sites, and, more particularly, on the higher ground to the south.
23. To my mind, the visual intrusion adds significantly to the harm from inappropriateness of either development in Green Belt because of their encroachment into the countryside. In coming to this conclusion, I have also borne in mind that both sites looked significantly underdeveloped in terms of what might be expected to be present on the plots for full, ongoing occupation. For instance, it might be expected that larger mobile homes would be stationed on the plots, more plots may be hard surfaced, and more day rooms may be needed.
Sustainability
24. The nearest settlement is Hurley about 1.5km to the south. This extensive village has a wide range of services and facilities, including a primary school. The village of Wood End, is about the same distance to the north, also with a primary school. There is an hourly bus service about 500m away on the road between Wood End and Hurley which connects to Atherstone. Although public transport is available, and the facilities in the local villages are not an excessive distance, it was readily acknowledged by the appellants that access to all local services would involve travel by private vehicle, including travel to school at Wood End.
25. Circular 1/06, paragraph 64, gives guidance on sustainability issues that they should not only be considered in terms of transport mode and distances to services. In this case, there is the matter of a settled base to consider that reduces the need for long-distance travelling, and the benefit of a settled base to enable the children to attend school on a regular basis. There are nine children presently at, or about to attend, Wood End Primary School which must be weighed in the balance. This leaves the issue of flood risk which follows.
Flood risk
26. The Environment Agency initially objected to both developments on the basis of the likelihood that the majority of the sites would be in Flood Zone 1, and that flow rates in the watercourses along the western and southern boundaries may give rise to Flood Zones 2 & 3 conditions. Flood Risk Assessments (FRA) had
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not been produced for either development which might have addressed these matters.
27. The appellant made the point that, as each site considered separately was less than 1 hectare, no FRA was required. I have some sympathy with that view, but, in this case, there are circumstances which make the issue less clear. The sites may now be in separate ownership, but they are served by a common surfaced access from Heanley Lane, which passes over a 300mm culvert on the west-east watercourse, and factors such as run-off from higher ground to the north and within the area of development itself, due to hard surfacing, all indicates to me that any flooding considerations would be interdependent between the two sites. Even if these developments had not taken place simultaneously, due regard would have to have been had to adjoining development.
28. Having said that, by the time of the inquiry, FRA’s had been produced covering both developments. The main conclusions were that the sites are in Flood Zone 1, as indicated by the Environment Agency Flood Map, and therefore not likely to suffer from fluvial flooding, that the uphill catchment area is relatively small and there is a low risk of flash flooding by run-off, and any localised ponding of water on Heanley Lane is unlikely to impede safe egress from the site as Heanley Lane rises to the west. The 300mm culvert beneath the access was identified as at risk of obstruction, preventing the free flow of stream water through the site, and it was recommended that a 600mm culvert be installed.
29. In line with Planning Policy Guidance (PPG) Note 25, my starting point has been the identification, on the Environment Agency Flood Map, of these sites as being in Flood Zone 1. In this context, the sequential test, as required by the guidance, is therefore not at issue as this land is at the lowest probability of flooding. Although caravans are classed as ‘highly vulnerable’ development, the guidance is that such development is appropriate in Zone 1, and it follows that an exception test is not required.
30. I have, however, considered the circumstances put forward by the Environment Agency which might suggest that the flood risk would be substantial, irrespective of the Zone 1 classification. These included that the capacities of the two watercourse channels are likely to cause in the region of a 1 in 3-5 year flood event, and that run-off from fields to the north could increase depending on the type of crop production, together with the inability of the channels, including road culverts, outside the sites to cope.
31. The Environment Agency acknowledged that the east–west watercourse, which bisects the eastern site and flows along the southern boundary of the western site, is the larger of the two watercourses with a clear gradient from Heanley Lane. Furthermore, that a 5m easement should be sufficient to cope with any overflow coupled with a larger culvert beneath the access. It seems to me that these measures would diminish the risk of fluvial flood on the eastern site. As for the western site, I noted that there has been some raising of the land together with a length of retaining wall built near the watercourse along the southern boundary as part of the site occupation, and a similar easement would be a necessary flood avoidance measure.
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32. In relation to the watercourse along the western boundary of the western site, the Environment Agency seemed to be satisfied that, due to the steepness of the gradient, a 5m easement should safeguard any development.
33. As for problems of run-off from neighbouring land, I appreciate that an extreme rainfall event could produce run-off affecting both sites, but there was no convincing evidence to indicate that the depth or velocity of such run-off would be a hazard to the stability of caravans, bearing in mind that much of it would be likely to be captured by off-site channels. A minimum floor height for caravans would be an additional safeguard.
34. Anecdotal evidence can be a help, and the appellants’ FRAs did not reveal any local knowledge of flooding on the sites. Local residents gave evidence, and, whilst several referred to ponding of water on Heanley Lane near the access to the sites, which could cause a problem for vehicles passing the sites, there was no suggestion that this was other than a temporary inconvenience, but not serious or damaging. Again, there was no convincing evidence that people could be trapped on the sites or in the vicinity.
35. In conclusion, even allowing for the need for precaution, I do not think that these considerations amount to a strong indication that damaging flooding would occur, requiring the calling into question of the Flood Zone 1 classification. This conclusion takes account of the additional safeguards that could be put in place, such as easements for development near the watercourses, and the installation of a larger culvert beneath the access to limit the possibility of obstruction.
The need for and provision of sites for gypsies and travellers
36. The appellants maintained that regard should be had to the guidance in Circular 1/06 that provision should have been made to 2011, and that the current shortfall should be covered in that period, thereby recognising that there is immediate need.
37. Circular 1/06 was issued because evidence showed that the advice in Circular 1/94 had failed to deliver adequate sites in many areas. One of its main intentions was to address under-provision over the following 3-5 years. Whilst the focus was clearly on the period up to about 2011, the Circular also set out the appropriate planning process for the identification of sites and transitional arrangements. The Circular states that where it was not possible to allocate pitch numbers comprehensively in the ( then ) current round of RSS reviews, interim arrangements would need to be considered.
38. I appreciate the appellants’ point that Planning Policy Statement (PPS) 3; Housing, paragraph 71, points to the need to maintain a 5-year supply of deliverable sites for housing. This is to ensure that new housing is coming on stream, and is available, for the population as a whole. In addition, however, site provision for the gypsy and traveller community is the subject of specific guidance on the relevant planning process through Circular 1/06.
39. The GTAA identified a need for 12 pitches to 2012, and a further 5 to 2016. However, the GTAA figure was primarily an estimate, not a determining policy,
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to be used as an input to the regional strategy process to arrive at a more widely informed figure.
40. The Council, supported by the Warwickshire County Council Gypsy & Traveller Liaison, was content that need and availability have been reasonably well- matched, with full use being made of the 17-pitch public site at Alvecote. There seems to have been no significant numbers of unauthorised encampments, that is until these appeal sites were occupied. A 7-pitch site at Atherstone Road, Hartshill had been granted a temporary planning permission on appeal which had been renewed until 2012. A further 1-pitch site, at Firtree Paddock, Mancetter was granted planning permission on appeal in 2008.
41. I acknowledge that the Council has not had an adopted policy to allocate or bring forward sites and, whilst I appreciate that temporary permitted pitches would not count against the fulfilment of requirements in the longer term, the Hartshill site has provided a settled site of 7 pitches during the time when the allocation of pitches was in the process of being determined in the RSS.
42. The current situation is that there is the provision of 7 pitches at Hartshill to 2012 plus the 1-pitch permitted site at Firtree Paddock, and I do not see that this provision is appreciably out of line with the guidance in Circular 1/06 to increase the number of gypsy and traveller sites in appropriate locations with planning permission in order to address the under-provision over the 3-5 year period 2006-2011, in the context of the recommended transitional arrangements set out paragraphs 41-46 of the Circular.
43. The longer term position depends on the permanence of the Hartshill site. The Council emphasised that it is more likely than not that Hartshill will be a prime candidate for inclusion in the proposed site allocations in the Development Plan and/or become a site with permanent planning permission. I consider that this cannot be reasonable discounted as the Council must be fully aware that if Hartshill is not confirmed, there would be significant pressure and difficulty finding a site of comparable size as a replacement for a site which is already well-established.
44. The Hartshill site is guaranteed until 2012, and on the present likelihood that it will become a permanent site, the additional requirement, in relation to the GTAA, would be 4 pitches in the period to 2012 and a further 5 pitches to 2016. I heard nothing to suggest that the Council would not be seeking to fulfil this requirement through the Local Development Framework, as advised by Circular 1/06. Of course, if Hartshill does not become a permanent site post- 2012, the required provision would be 16 pitches.
45. As the RSS has been revoked, it is to be assumed that decisions on housing supply (including the provision of gypsy and traveller sites) will rest with Local Planning Authorities without the framework of regional targets and policies. In taking account of this announcement, I have also borne in mind that the process of pitch requirement assessment was set out in Circular 1/06, and this had progressed to the point where the District pitch requirement to 2017 had been assessed in the regional context, in line with the guidance in Circular 1/06. Whilst I appreciate that, as a result of the revocation of the RSS, the projected requirement might be less certain or could change, I can see no
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reason why the current requirement should not be regarded as appropriate in the context of these appeals because, as mentioned previously, the GTAA estimate was very similar to the RSS target to 2017 for North Warwickshire District in the draft of the Interim Policy Statement submitted to the inquiry, with which the District Council will have had involvement during its preparation, and about which it raised no concerns at the inquiry.
46. In coming to these conclusions, I have taken into account that the parties in both appeals did not rely on the RSS process in making their cases in relation to the need for and provision of sites for gypsies and travellers.
47. In the overall balance, the question, therefore, is the weight to be given to the identified requirement, including the likelihood of permanence of the Hartshill site, in relation to the weight to be given to the considerations for and against the appeal sites.
The appellants’ accommodation needs, and the availability of alternative sites
48. The combined site of both appeals was acquired by Mr Hope Taylor in 2006, but only the eastern site has been occupied for his own family purposes in 2008, and the evidence was that he sold on the western site to Mr J Smith who has disposed of the eight pitches to the present occupants. The Council cited records that he had previously lived in a house in Willenhall for 2 years, but the appellant maintained that he could not settle, and had worked to improve the house for a profitable sale.
49. Dealing first with the eastern site, one pitch is occupied by Mr Hope Taylor, his wife Lisa and daughter, another by his son, and a third by his daughter with her husband Walter Lee and their son. He had bought the sites of both appeals to continue its use as a Camping and Caravanning Club site but, because of vandalism, he decided not to pursue the business. He wants a static caravan and tourer on each plot so that his family can live together and to continue to earn a living from cable buying with his son. Mr Taylor has suffered from ill- health since 2008 and has been attending hospital regularly for diagnosis and treatment. With a settled life, he can manage his health with a local doctor and make sure that his young daughter receives an education at Wood End Primary School which she is hoping to attend.
50. It is apparent that there are benefits from the family living together in the traditional gypsy and traveller lifestyle, and the opportunities for continuing education for the children and Mr Taylor’s healthcare which carry weight, but it is not so clear that these benefits are necessarily tied into occupation of this site. Mr Taylor’s previous activities had enabled him to buy a house in Willenhall, which I accept may not have suited his needs, and which further enabled him to buy Wrens Nest in 2006 as a camping and caravanning site to run as a business. This was not pursued, and it seems to me that the residential occupation of the appeal site was an opportunity which he took advantage of, but without regard to the responsibilities arising from such an occupation. I appreciate that the use of land for a camping and caravanning site can be a complicated business, but a simple check would have clarified whether residential occupation was in order. Whilst now claiming that lack of money would effectively preclude being able to establish a settled comparable lifestyle elsewhere, there was little detail offered about the sale of the
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substantial part of the land (the western site ) to Mr J Smith which, in the absence of any evidence to the contrary, would likely to have been for a substantial price. He would not consider moving on to a Council owned site, and the only alternative would be to live on the road.
51. Turning to the 8 plots on the western site, the Price, Sutcliffe and Lee families had come together to occupy the site around mid-2008. Mr David Price and his wife Victoria, with 5 children, had previously lived on a family site in Cannock in addition to travelling. The two youngest children attend Wood End Primary School. Mr Price earns his living by roofing work and car-dealing. They are registered with doctors and dentists in Atherstone. The eldest son, Mr Dave Price, also now owns a pitch on the site. Mrs Leann Price with 5 children had previously lived on a transit site in Bloxwich. Her husband does gardening work in the area. The family wanted a settled site to maintain the education of the two youngest children at Wood End Primary School which they had been attending for one year. Two elder children were being home-tutored. Some schooling had taken place in Cannock but this was not continuous. Mr Nathan Price and his wife Michaela have one young child. He travelled with his father, mostly living on roadsides. He earns his living dealing scrap and the family are registered with a doctor in Hurley. Mr Pacer Sutcliffe has settled with his wife Hayley and two children. They had previously lived temporarily in Derbyshire and Cannock. The children attend Wood End Primary School and they have a medical condition and continuity of education and healthcare is essential. Mr Sutcliffe earns a living mainly as a gardener. Mr Scag Lee and his wife Charlene, with four children, had travelled around Birmingham and Wolverhampton with no settled base. He now does landscaping work in the area. One of the children attends Wood End Primary School and is receiving special attention. The family are registered with a doctor in Hurley. Mr Harry Lee and his wife Sharnade, with four children, travelled around the West Midlands living on roadsides, mainly in Cannock. A daughter has been home tutored and another daughter is expected to enrol at Wood End Primary School. He earns his living dealing scrap in the local area. Mr Eathal Lee and his wife Ellen, who are presently not resident on the site, had mainly travelled around Tamworth and Birmingham. He works as a landscape gardener in the local area.
52. As with the residents of the eastern site, there are benefits from the families living together in the traditional gypsy and traveller lifestyle, and the opportunities for healthcare and continuing education for the children. It is apparent that some, but not all, of the occupants had been moving from site to site with the obvious disruption that causes, and the attendant difficulties of maintaining good education and health. In those circumstances, the opportunity for a settled site would have been difficult to resist, but it must have been equally clear that occupying and establishing a site without authorisation would raise questions about the reasons behind a group of families, which seemed to have been pursuing relatively separate lives in various parts of the Midlands, coming together on this site when some, at least, seemed to have had strong links with more familiar locations.
53. As for the availability of alternative sites, the Council had originally relied on the availability of pitches at the public Alvecote site, but it became apparent
11 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
that this site was generally full with relatively settled occupants, and was not therefore to be regarded as a realistic alternative. The appellants drew support from third party evidence that the public site at Alvecote was subject to unacceptable noise levels from passing high-speed mainline trains, and should therefore not be considered as suitable alternative accommodation for the appellants. Whether or not this is the case, the site is well-maintained and provides a settled home for its occupants but, in the context of these appeals, it can effectively be discounted as alternative accommodation.
54. The Council raised a further public site at The Griff, Coventry Road, Nuneaton, in the neighbouring council area of Nuneaton & Bedworth, as a possible alternative. It was acknowledged that this site was also generally fully occupied, and I saw for myself when I visited the site after the inquiry that there did not seem to be any obvious spare pitches. Whilst pitches might be expected to become available from a turnover of occupants in the normal course of events, it was clear from the evidence of the Warwickshire Gypsy and Traveller Liaison that this would be complicated by the fact that the site is due to undergo a major refurbishment, which is now programmed. The details of how this would take place were not available, and could range from phased works allowing some pitches to remain occupied, to clearance and refurbishment of the site before reoccupation. Whatever method is used, it is difficult to envisage that The Griff site would provide a realistic alternative as, even with phasing of the works, capacity in the interim is bound to be reduced. It would also be reasonable to assume that first call on the refurbished pitches might be given to displaced occupants.
55. It is not for the appellants to prove that there are no available sites, but this has to be balanced with the reluctance of the appellants to consult the relevant bodies who might have been able to offer help to find accommodation, and their stated position that Council sites would not be considered.
Overall balance and conclusions
56. The harm to the Green Belt because of the inappropriateness of the development, and the substantial identifiable harm to the openness and visual amenity of the Green Belt, weigh very heavily against these developments.
57. On sustainability, the sites are a significant distance from local settlements, but I would not regard their position as remote. Public transport is available within reasonable walking distance, and whilst the appellant families clearly relied on their own vehicles for all their daily needs, which conflicts with the principle of sustainability, the benefits from a settled base indicate that the issue is broadly neutral.
58. Turning to flood risk, whilst I considered that the evidence indicated that the classification of both sites to be in Flood Zone 1 should be upheld, there are concerns about the capacity of the watercourses through the eastern site and along the southern and western boundaries of the western site, together with some uncertainty about the likelihood of run-off from the higher ground to the north. Having said that, there were no indications from residents in the locality that the site had experienced noticeable flooding in the past which might have suggested a higher risk. To my mind, safeguards could be put in place through
12 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
conditions relating to easements and upgrading of the culvert under the access which would lessen the outstanding concerns.
59. The Council had initially raise an objection to the developments on the basis that Heanley Lane was little more than a single-track road and that additional traffic from the developments would be a risk to road safety. However, the Highway Authority had agreed before the inquiry that a condition dealing with upgrading of the site entrance and passing places on Heanley Lane would address this problem.
60. Apart from those matters which can be dealt with by conditions, the main harm is therefore the inappropriateness of the developments in the Green Belt, together with the harm to the openness and visual amenity of the Green Belt. In line with the guidance in PPG2, there need to be considerations which clearly outweigh that harm so as to amount to very special circumstances to justify the developments.
Other considerations common to both developments
61. Dealing first with the need for and provision of sites for gypsies and travellers, I found that the current provision is not significantly out of step with the GTAA estimate of need to 2012.
62. Eight pitches have already been provided, and I acknowledge that they have come about through planning appeals. Whilst this has allowed some gypsy and traveller families to benefit from settled sites, it has not provided a clear lead to the gypsies and traveller community about where longer term opportunities might be taken up. The Hartshill site of 7 pitches has a temporary planning permission which expires in 2012, but, in my opinion, judging by the opinions expressed in evidence at the inquiry, it is more likely than not that there will be permanent provision at this site. Alternatively, I consider that it would not be reasonable to simply discount this site as an element of continuing site provision. On that assumption, and taking on board the GTAA estimates of need, I found that a 4 further pitches will be likely to be required by 2012 and a further 5 to 2016, and the development plan site allocation process should address that provision. With all this in mind, I consider that the need and provision of sites is not, at present, a matter of significant weight in support of the appeals at this time.
63. Turning to the availability of alternative sites, I found that the likelihood of accommodation being available at the public sites at Alvecote and The Griff, in Nuneaton & Bedworth, which were scrutinized in some detail at the inquiry, can effectively be discounted. There was no evidence to indicate that a substantial number of pitches would be available at Alvecote, which seems to have a record of being fully occupied with relatively settled residents. The Griff site is programmed for major refurbishment which might severely restrict its capacity in the short term, and, in the longer term, I do not consider that it will offer a realistic alternative as it seems likely that occupants affected by the refurbishment would have first claim on the accommodation.
64. No other sites were put forward, for which an assessment might have been made as to whether they were available, suitable, or affordable for either group of appeal residents. To my mind, however, this does not mean that such sites
13 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
may not be realizable in the medium to longer term. On the present evidence, the lack of alternative accommodation adds weight to the appellants’ cases, but with the reservation that both sets of appellants stated that public sites would not be acceptable even if they were to be available.
Other considerations – the eastern site
65. The health of Mr Hope Taylor is a concern, but, from the evidence, he has been receiving the care and treatment that he would normally expect. However, I accept that the health of gypsies and travellers is a general concern, as pointed out in Circular 1/06, and there seems to be little doubt that moving from site to site is a contributory factor in this problem. He is registered with a local doctor, which will help to sustain treatment, and this is a consideration of some weight.
66. As with the health matters, the benefit of a settled site is also important in breaking the cycle of poor education in the community. The opportunity for Mr & Mrs Taylor’s daughter to attend primary school into the future is a matter of weight.
67. In addition, the settled site is enabling the family to remain together for mutual support, which is an important aspect of the traditional gypsy and traveller lifestyle.
68. Whilst all these factors are significant, it is apparent that the Taylor family had a relatively settled life in Willenhall up to 2006 which would have addressed the health and education concerns. To my mind, this lessens the weight that can be given to the personal circumstances overall, but the fact remains that the right to pursue the traditional gypsy and traveller lifestyle is an important consideration, together with the threat to this if forced to move on from the appeal site. Having said that, whilst no details were made available, it stands to reason that the sale of the western site to Mr J Smith would have given the Taylor family resources to establish alternative accommodation.
69. The appellants pointed out that, if these appeals fail, it is likely that the site would be used as a Camping and Caravanning Club site, which had been its previous use. Whilst I acknowledge that the site had been certificated in the past, there was no conclusive evidence that the use had actually been carried on by a previous owner or by Mr & Mrs Taylor. I understand that use as a certificated site is permitted development only with a current certificate from an exempt organisation, and there was conflicting evidence about whether a certificate would be likely to be issued.
70. Even if there were some likelihood that a certificate would be issued in the future, which is by no means guaranteed, it seems to me that Mr Taylor’s lack of will or success in running the site as a camping and caravanning business indicates that, in this location, it is not a site which would be in great demand or attract much business. The site could be let or sold to another operator, but this is conjecture. I accept that the use would impinge on openness if it took place, but not nearly to the same extent as a full, all-year-round residential use with all the associated trappings. In my opinion, the fall-back position does not give significant support to the appellants’ case.
14 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
Other considerations – the western site
71. From the evidence of the occupants of the western site, similar considerations apply. There are about 8 children attending the local primary school, and most of the families are registered with local doctors, with the children of Mr Pacer Sutcliffe requiring particular health care. The benefit of a settled site is important in breaking the cycle of poor education and health in the community, and the prospect of a significant break in the primary education of 8 children is a matter of weight. Having said that, there is nothing to suggest that these factors are other than typical of the likely occupiers if the pitches were available for persons falling within the definition of gypsy and traveller.
72. Living together as a group with the traditional gypsy and traveller lifestyle is also a matter of weight, together with the threat to this if forced to move on from the appeal site, although I have previously expressed some reservation about whether the coming together of this group of occupants, who seemed to have had a variety of travelling patterns in the past, also reflected the opportunity for accommodation which presented itself, and which was taken up without any prior notice or consultation.
Conclusions
73. Having assessed the other considerations in the balance, at this point in my reasoning, they do not clearly outweigh the identified harm to the Green Belt and so the very special circumstances to justify inappropriate development do not exist. The overall provision of pitches in the District is not out of line with the estimated need, and whilst, at present, there is no realistic alternative accommodation, this should be a short-term problem. The appellants’ need for accommodation, including the personal circumstances, whilst of significant weight, are not, in my view, so severe as to tip the balance such that a permanent planning permission would be justified.
74. The appellants submitted that the consequences of the enforcement action and the refusal of planning permission would result in a violation of the occupants’ human rights under Article 8 of the ECHR. To be forced to move from the site would plainly be an interference with the occupants’ home and family life. However, the extent of the interference is tempered, in my view, because of the reluctance of the occupants to consider public accommodation if this were to be available, and my concerns that an opportunistic occupation of the sites took place without clear evidence that previous living arrangements were so unsuitable that occupation of the site without notice or consultation was necessary. Consequences arising from the Council’s enforcement action and the refusal of planning permission are, to a significant extent, of the occupants’ own making. Circular 1/06 emphasises that gypsy and traveller communities should have the same rights and responsibilities as every other citizen, and that the obligation on public authorities to act compatibly with Convention rights does not give gypsies and travellers a right to establish sites in contravention of planning control.
75. I find, therefore, that the likely interference with the occupants’ home and family life does not contribute sufficient additional weight so that support for the developments clearly outweighs the objections in the longer term.
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76. In this connection, whilst the Council was criticised for not considering even a temporary planning permission, the guidance in Circular 1/06 is that local planning authorities should consider the consequences of refusing or granting planning permission, or taking enforcement action, on the rights of the individuals concerned, both gypsies and travellers and local residents, and whether the action is necessary and appropriate in the circumstances. In this case, there was significant local resident opposition to the developments and those concerns have to be taken into account in the assessment of proportionality, in the context of the stated aim of the Circular to promote good community relations at the local level, and avoid the conflict and controversy associated with unauthorised encampments.
77. Dealing with an allied submission, Circular 1/06 also points out that the duty on local authorities to actively seek to eliminate unlawful discrimination, and promote good race relations, does not give gypsies and travellers a right to establish sites in contravention of planning control.
78. Turning to the question of a temporary planning permission, Circular 1/06 points out that where there is an unmet need, but no available alternative gypsies 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, consideration should be given to granting a temporary permission. I have found that unmet need is not a matter of substantial weight, and the need post-2012 will be addressed by the reconsideration of the Hartshill site in combination with site allocations in the DPD. The substantial weight that should be given to unmet need in considering temporary planning permissions is therefore not present in these cases. I acknowledge that the residential occupation of the sites for a temporary period should be considered to be less harmful to the Green Belt, but this does not override my finding.
79. That said, I have dealt with the matter of alternative accommodation in the ground (g) appeals, and, on that basis, I conclude that the ground (a) appeals relating to each site, and the planning appeal relating to the eastern site, should fail.
80. In coming to that conclusion, I have taken account of the conditions discussed at the inquiry relating to site development including flood protection, provision for landscaping, highway matters, drainage and lighting, and also relating to pitch and caravan numbers and protection of a high-pressure gas main. I have already dealt with a time limited condition, and although the question of a personal permission was raised, there were no overriding personal circumstances which would make this appropriate. The proposed conditions would not alter the balance in favour of a permission in relation to the main objection to these developments arising from their inappropriateness and the harm to the Green Belt.
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Appeal B – ground (f)
81. In the appeal documentation, the appellants pointed out that planning permission had been granted for construction of the access road and the provision of foul drainage, and that the enforcement notice cannot require their removal.
82. There was no further evidence given on this matter, but the Council did not challenge these facts, and it seems reasonable to me to exclude reference to these two items in the requirements of the notice.
Appeals A & B - ground (g)
83. The time for compliance with the enforcement notices on both sites is six months. Both appellants argued that that the time for compliance should be two years. I consider that six months is too short, particularly as the Council did not suggest any alternative accommodation for those that might need it, and whilst I have not accepted the case for the temporary planning permission on the basis of unmet need, the education and health concerns are of significant weight in the determination of the time for compliance. The prospect is that accommodation arrangements would be uncertain and unsatisfactory for a period following dismissal of the appeals.
84. I find that a period of eighteen months would be more reasonable as it would enable alternative accommodation and site provision arrangements to be progressed, and avoid the adverse consequences of displacement, at least in the short term, taking account of the personal circumstances of the occupiers. It would also ensure that their accommodation needs are taken into account in any subsequent site identification as part of the development plan process up to 2012, including the reconsideration of the Hartshill site, to which they would be in better position to respond. In my view, this course of action would be proportionate in the circumstances, and hence there would be no violation of the appellants’ rights under Article 8 of the ECHR.
17 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
FORMAL DECISIONS
APPEAL A: APP/R3705/C/08/2088698
85. I direct that the enforcement notice be varied by deleting, in paragraph 6, the word: ‘Six’ and inserting the word: ‘Eighteen’.
86. Subject to this variation, I dismiss the appeal, uphold the enforcement notice, and refuse to grant planning permission on the application deemed to have been made under section 177(5) of the 1990 Act as amended.
APPEALS B: APP/R3705/C/08/2088816 & 2088818
87. I direct that the enforcement notice:
1. be varied by deleting, in paragraph 5(ii), the word: ‘drainage’, and by deleting, in paragraph 5(iii), the words: ‘and access roads,’;
2. be varied by deleting, in paragraph 6, the word: ‘Six’ and inserting the word: ‘Eighteen’.
88. Subject to these variations, I dismiss the appeals, uphold the enforcement notice, and refuse to grant planning permission on the application deemed to have been made under section 177(5) of the 1990 Act as amended.
APPEAL C: APP/R3705/A/08/2088454
89. I dismiss the appeal.
Paul V Morris
Inspector
18 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
APPEARANCES
FOR THE APPELLANTS (Appeals B & C):
Mr Alan Masters Of Counsel, instructed by Philip Brown Associates Ltd He called: Mr Gerry Cutting FICE Principal, Prior Associates, Consulting Engineers Mr Hope Taylor Appellant Mr Philip Brown Managing Director, Philip Brown Associates Ltd BA(Hons) MRTPI
FOR THE APPELLANTS (Appeal A):
Mr Michael Rudd Of Counsel, instructed by Green Planning Solutions LLP He called: Mr Gerry Cutting FICE Principal, Prior Associates, Consulting Engineers Mr David Price Site resident Mr Dave Price Site resident Mrs Lee-Ann Price Site resident Ms Victoria Price Site resident Mr Pacer Sutcliffe Site resident Mr Scag Lee Site resident Mr Nathan Price Site resident Mr Harry Lee Site resident Mr Matthew Green Green Planning Solutions LLP
FOR NORTH WARWICKSHIRE BOROUGH COUNCIL:
Mr Philip Williams Of Counsel, instructed by Head of Development Control Services He called: Mr John Beckett HNC Development & Flood Risk Technical Specialist - Environment Agency Mr David Baxendale Environmental Health Officer DipEH DipA&NC M.EH Ms Sharron Wilkinson Principal Planning Control Office BSc(Hons) DipUP MRTPI Mr Robert Leahy Gypsy & Traveller Service Officer – Warwickshire CC
INTERESTED PERSONS:
Mr Ian Antill Local resident Mr M Gallagher Local resident Dr Paul Beavon Local resident Mr Stephen Maddams Local resident
19 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
Mr Alastair McCallum Local resident Mrs Anne Lewis Local resident Mr Brian Moss County Councillor Mr Robert Williams On behalf of local residents Mr Hayden Phillips Local resident Mr Timothy Green MBIS Noise consultant supporting the appellants
DOCUMENTS 1 Attendance lists 2 Statement of Common Ground 3 Letter NWBC to Planning Inspectorate re appeal documents – 24.4.09 4 Letter NWBC to Philip Brown Associates re appeal documents – 20.5.09 5 Letter GOWM to NWBC re NW Local Plan saved policies & schedule – 18.6.09 6 NWBC LDF Core Strategy Issues and Options – June 2009 7 Letter EA to NWBC re flood risk – 12.8.08 8 Statement – Mr I Anthill 9 Statement – Mr M Gallagher 10 Statement – Dr Paul Beavon 11 Statement – Mr Stephen Maddams 12 Statement – Mr Alastair McCallum 13 Statement – Mr Brian Moss 14 Written statement – Mr Hope Taylor 15 Letters (2) supporting appellant Mr Hope Taylor 16 Letters (2) Brewood Surgery re Mr Hope Taylor – 9 & 22.6.09 17 Letter Wood End Primary School re Elizabeth Taylor – 22.6.09 18 Letter Mrs K Brown (Home Tutor) re Elizabeth Taylor – 6.6.09 19 Letter The Camping & Caravanning Club to Mr N V Reeves re site certification – 13.10.05 20 Letter The Camping & Caravanning Club to Mr & Mrs Hope Taylor re site certification – 28.11.05 21 Bus timetable service 777 22 Letter Warwickshire Police to Mr Taylor re theft at Wrens Nest Caravan Park – 6.7.07 23 Letter Warwickshire Police to Ms Taylor re arson damage at Wrens Nest Caravan Park – 22.5.08 24 Land Registry copies re trunk pipe line affecting eastern site – 12.6.09 25 Letter RTH Solicitors to Mr & Mrs Hope Taylor re land purchase – 11.11.05 26 Letter RTH Solicitors to Mr & Mrs Hope Taylor re disposal of plots 6, 7 & 10 – 15.9.09 27 Letters (4) Royal Wolverhampton Hospital re health of Mr Hope Taylor – 25.8.09, 18.9.09, 7.10.09, 8.10.09 28 Letter Brewood Surgery re health of Mr Hope Taylor – 28.9.09 29 Letters (8) supporting site residents Price & Lee 30 Statement – Mr David Price 31 Documents re health of Master Gino Price – September 09
20 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
32 Letters (2) Wood End Primary School re Tamira Price & Tia Price 5.9.09 33 Statement – Mr Dave Price 34 Statement – Mr Pacer Sutcliffe 35 Statement – Mr Scag Lee 36 Statement – Mr Nathan Price 37 Statement – Mr Harry Lee 38 Human Rights related questionnaires for Mrs Victoria Price, Mr Pacer Sutcliffe, Mr Harry Lee, Mr Nathan Price, Mr Scag Lee 39 Email Ms S Wilkinson to Mr Green re proposed highway condition – 17.7.09 40 Statement by residents of Alvecote Caravan Park – 8.10.09 41 Register of Title (copy) re land on south-west side of Heanley Lane – 20.7.09 42 NWBC Planning Application Requirements – December 2007 43 Letter NWBC re notification of inquiry resumption - 30.10.09 44 Letter NWBC re document submission – 11.12.09 45 Letter NWBC to Planning Inspectorate re additional inquiry documents – 8.1.10 46 Registers (4) of Title (copies) re Plots 6,7,10 Wrens Nest & 12 Rookery Park, Brierley Hill 47 Record of unauthorised encampments 2008, 2009, 2010 48 Email correspondence Camping & Caravanning Club (3.9.09) & NWBC (21.9.09) re renewal of certificated site licence 49 Statement - Mr Tim Green - with appendices re Alvecote travellers site 50 Statement – Mr David Baxendale, Environmental Health Manager NWBC – re Alvecote travellers site January 2010 51 Statement – Mr R Leahy – January 2010 52 Bid document for rebuild of Griff gypsy garavan site, Nuneaton – August 2008 53 Warwickshire CC Gypsy/Traveller Site Registration & Allocation Policy – October 2006 54 Letter Brewood Surgery (5.1.10) & Royal Wolverhampton Hospital re health of Mr Hope Taylor (11.1.10) 55 WM Regional Assembly – RSS Phase 3 – Interim Policy Statements & Policy Recommendations – 22.1.10 56 Letter Mr M G A Gallagher – 5.1.10 57 Letter Mr A McCallum with appeal decision APP/P1560/A/09/2105020 – 15.10.09 58 Appeal decision APP/J3910/A/08/2078618 – 9.10.08 59 Appeal decision APP/J3910/A/08/2066141 – 30.7.08 60 Appeal decision APP/T3725/A/09/2107108 – 27.11.09 61 Closing submissions - NWBC 62 Closing submissions - western site – appellant J.Smith 63 Closing submissions - eastern site – appellants Mr & Mrs H Taylor 64 Costs submissions - eastern site – by appellants Mr & Mrs H Taylor 65 Costs submissions - western site – by appellant J.Smith 66 Costs submissions – notes in response - NWBC
21 Appeal Decisions APP/R3705/C/08/2088698, APP/R3705/C/08/2088816 & 2088818, APP/R3705/A/08/2088454
67 Costs submissions – by NWBC against appellants Mr & Mrs H Taylor 68 Costs submissions by NWBC against appellant Mr J Smith 69 Email NWBC to Mr Tim Green re costs application – 28.1.10 70 South Cambridgeshire DC v SSCLG & A & J Brown [2008] EWCA Civ 1010 71 P & B McCarthy v SSCLG & South Cambridgeshire DC and J Sheridan & others v SSCLG & South Cambridgeshire DC [2006] EWHC 2387 (Admin) 72 Chikwamba v SS Home Dept [2008] UKHL 40 73 LB Bromley v SSCLG & M Friend [2008] EWHC 3145 (Admin) 74 T Langton & R McGill v SSCLG & West Dorset DC [2008] EWHC 3256 (Admin) 75 R. o.a.o. The Environment Agency v Tonbridge & Malling BC [2006] 2 P.& C.R. 29
Post-inquiry documents 76 Letter Philip Brown Assoc to PINS re alternative sites – 9.2.10 77 Letter NWDC to PINS in response to Doc 76 – 16.2.10 78 Submission on behalf of appellant Mr J Smith re revocation of the RSS – 29.7.10 79 Letter NWBC to PINS re revocation of the RSS – 16.7.10
PLANS A Indicative plot occupation – western site - 24.6.09
PHOTOGRAPHS 1 Photos (2) re Heanley Lane 2 Aerial photo – appeal sites 3 Aerial photo - appeal sites 4 Aerial photo – The Griff site, Coventry Road, Nuneaton
22
The Planning Inspectorate Costs Decision 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Inquiry held on 23-25 June, 15 & 19 Bristol BS1 6PN October 2009, 26-29 January 2010 0117 372 6372 email:[email protected] ov.uk
by Paul V Morris DipTP MRTPI
an Inspector appointed by the Secretary of State Decision date: for Communities and Local Government 13 October 2010
Costs application in relation to Appeals Ref: APP/R3705/C/08/2088816 & 2088818 & A/08/2088454 Wrens Nest (eastern site), Heanley Lane, Hurley CV9 2LR • The application is made under the Town and Country Planning Act 1990, sections 174, 320 and Schedule 6, and the Local Government Act 1972, section 250(5). • The application is made by Mr Hope Taylor & Mrs Lisa Taylor for an award of costs against North Warwickshire Borough Council. • The inquiry was in connection with: (a) appeals against an enforcement notice alleging the change of use of the land from agricultural to a residential caravan site for gypsy families together with the formation of hardstanding areas, access road, parking of motor vehicles, buildings, structures, drainage and fencing associated with the residential use, and (b) an appeal against the refusal of planning permission the change of use to a residential caravan site for three gypsy families. Summary of Decision: The application fails and no award of costs is made.
The submissions for the appellants
1. The application is made for a full or partial award in relation to Circular 3/09.
2. In relation to a full award, the Council had unreasonably failed to comply with the guidance on gypsy and traveller site provision set out in Circular 1/06, paragraph 12(c), and Planning Policy Statement (PPS) 3, paragraph 71. There was also unreasonable failure to consider and act on Regional and National Guidance which supports the appellants’ case.
3. No progress had been made for bringing forward site allocations within the context of Development Plan Documents, as advised in the West Midlands Interim Regional Spatial Strategy (RSS), which indicated that transitional action was required to address need and should not await further development of the RSS.
4. In this context, the Council did not give proper consideration to the transitional arrangements set out in Circular 1/06, paragraphs 41-46. The circumstances in which a temporary planning permission should have been granted clearly arose here, and should have been given substantial weight. The Council’s committee gave no consideration to this matter before the refusal of planning permission and the issue of the enforcement notice, nor as a material consideration in the determination of this appeal, contrary to Circular 3/09, paragraph B25.
Costs Decision APP/R3705/C/08/2088816 & 2088818 & A/08/2088454
5. There was further unreasonable behaviour in not dealing with these matters in the context of the appellants’ human rights. Contrary to Circular 1/06, paragraph 12(i), no proper consideration was given to whether it would be proportionate to move these families in view of the Council’s failure to facilitate the gypsy way of life.
6. There was a failure to properly carry out a balancing exercise, giving less weight to temporary harm and substantial weight to the unmet need.
7. This unreasonable behaviour resulted in an unnecessary inquiry.
8. In relation to a partial award, the Council failed to substantiate the objection to the development based on the flood risk, contrary to Circular 3/09, paragraphs B23-25.
The response by North Warwickshire Borough Council
9. There has been no unreasonableness in the way in which the Council has approached the exercise of compiling a site allocation Development Plan Document (DPD). It is in line with many other Councils and a reasonable timetable is being pursued. Circular 1/06, paragraph 43, requires that Councils should consider preparing site allocations DPD’s in parallel with or in advance of the Core Strategy. This falls far short of the assertion that the Council has been unreasonable if it has not done so, such as to be the basis of a costs application. This is not what the Circular intended, and it would have been expressed differently if it had been intended to be a mandatory step.
10. The West Midlands Interim Regional Strategy was guidance to Councils, and, again, there can be no basis for a costs application. The guidance has not presented itself as a practical approach in North Warwickshire as provision for gypsy and traveller sites has been made, and permissions may come forward ahead of the timetable in any event.
11. Circular 1/06, paragraph 12(c), simply says that the intentions of the Circular are to increase significantly the number of gypsy sites in appropriate locations. This does not indicate particular actions required by Councils. Furthermore, the appeal site is not an appropriate site.
12. Proper consideration was given to the issue of unmet need, and future need is part and parcel of the substantial weight to be given to this material consideration which the Council did take into account.
13. In relation to human rights, the Council took full account of the personal circumstances of the appellants on the information that was available. The exercise of evaluating very special circumstances for the development is part and parcel of considering the appellants’ human rights. Circular 1/06, paragraph 12(i) does not add anything to this duty, as it again simply sets out the intention of the Circular and does not dictate the form of action to be taken by the Council.
14. On these policy matters, there was no unreasonable behaviour by the Council.
15. As for the flooding objection, the Council has a duty to consider flooding, especially when the Environment Agency raises concerns; to behave otherwise would be negligent. The Council was advised, during the time it was
2 Costs Decision APP/R3705/C/08/2088816 & 2088818 & A/08/2088454
considering the planning application, that a Flood Risk Assessment (FRA) would be forthcoming. If it had been submitted, then the issue at the inquiry might have been handled differently. The FRA was only produced prior to the inquiry and the Environment Agency was concerned about the lack of sufficient detail.
16. There was no unreasonable behaviour by the Council in pursuing the objection at the inquiry.
Conclusions
17. Circular 8/93, now cancelled, advised that, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused another party to incur or waste expense unnecessarily.
18. The cancellation of Circular 8/93 by Circular 3/09 applies with effect from 6 April 2009 to all appeals made on or after that date. The ability to apply for an award of costs for appeals pre-dating 6 April 2009 is derived from the legislation cited at the head of this costs decision. The conditions for an award to be made, set out in the previous paragraph, are carried forward in the new Circular. Therefore for appeals like this one made before 6 April 2009, I see no difficulty in deciding whether or not to make an award of costs in the light of these well established principles.
19. Dealing first with the claim that the Council had unreasonably failed to comply with the guidance on gypsy and traveller site provision set out in national and regional policy, whilst it is clear that the Council has not reached the stage of producing a DPD which would identify sites, to my mind the actual provision of sites has taken place in a way which is compatible with the transitional arrangements set in Circular 1/06. I have set out my findings on this matter in the appeal decision and it is not appropriate to repeat those findings here. Suffice it to say that I consider that the provision of sites has kept pace with the identified need arising such that the Council cannot be regarded as having behaved unreasonably in relation to national and regional policy guidance.
20. As for the claim that the Council did not properly consider the grant of a temporary planning permission, it was faced with the unlawful occupation of the site in the Green Belt and, to be weighed against that, an account of the appellants’ circumstances which may not have been persuasive on the available information. Given the position on the provision of sites within the District, and other objections arising from flood risk and highway safety, it seems to me that there is no clear indication that the Council did not undertake a balancing exercise which would lead to the conclusion that the inquiry was unnecessary.
21. In coming to this conclusion, I have borne in mind the advice in Circular 3/09, paragraph B13, that, in relation to costs awards, when an appellant is seeking planning permission for development in Green Belt, which would be inappropriate according to Planning Policy Guidance (PPG) Note 2, it will not be sufficient for the appellant to rely on a genuine belief that there are very special circumstances to justify overriding the Green Belt presumption stated in PPG2. It is for the appellant to show why permission should be granted by demonstrating what the very special circumstances are, and providing evidence to justify an exception to general Green Belt policy.
3 Costs Decision APP/R3705/C/08/2088816 & 2088818 & A/08/2088454
22. Turning to the application for partial costs in relation to the flooding issue, the guidance in Circular 8/93, Annex 3 paragraphs 9 & 10, has been taken forward into Circular 3/09, paragraphs B23 & B24, which reminds planning authorities that they are expected to give thorough consideration to relevant advice or representations from statutory consultees such as the Environment Agency. While it is the primary responsibility of planning authorities to either accept or reject that advice, they should clearly understand the basis for doing so and should provide, where necessary, a clear and rational explanation of the position taken. What matters in any subsequent costs application is whether or not the authority can show good reason for accepting, or rejecting the consultee’s advice.
23. Planning Policy Guidance (PPG) Note 25 Annex D recommends that a Flood Risk Assessment (FRA) is required for development in Flood Zone 1 for sites over 1 hectare. In this case, whilst I acknowledged in the decision on the appeals that the site is less than 1 hectare, I came to the conclusion that both eastern and western sites should be considered together for flood risk purposes. By the time of the inquiry, a FRA had been submitted which indicated that there was no flood risk over and above that normally associated with Flood Zone 1. The Environment Agency maintained its objection at the inquiry, and, to my mind, the Council had some reason to accept the Agency’s advice due to the uncertainties about the potential for run-off from adjoining land and the capacity of the culvert under the access, and, on the other hand, no obviously good reason to reject the advice. Taking account of appropriate conditions, I found the flood risk not to be a matter of weight against the development, but that was with the benefit of a thorough examination of all the evidence, and does not call into question the Council’s behaviour on the matter in relation to the advice from the Environment Agency to the extent that a partial award of costs is justified.
24. I consider that unreasonable behaviour resulting in unnecessary expense, as described in Circular 3/09, has not been demonstrated and I therefore conclude that an award of costs is not justified.
FORMAL DECISION
25. I refuse the application for an award of costs.
Paul V Morris
Inspector
4
The Planning Inspectorate Costs Decision 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Inquiry held on 23-25 June, 15 & 19 Bristol BS1 6PN October 2009, 26-29 January 2010 0117 372 6372 email:[email protected] ov.uk
by Paul V Morris DipTP MRTPI
an Inspector appointed by the Secretary of State Decision date: for Communities and Local Government 13 October 2010
Costs application in relation to Appeal Ref: APP/R3705/C/08/2088698 Wrens Nest (western site), Heanley Lane, Hurley CV9 2LR • The application is made under the Town and Country Planning Act 1990, sections 174, 320 and Schedule 6, and the Local Government Act 1972, section 250(5). • The application is made by Mr J Smith for an award of costs against North Warwickshire Borough Council. • The inquiry was in connection with an appeal against an enforcement notice alleging the change of use of the land from agricultural to a residential caravan site for gypsy families together with the formation of hardstanding areas, access road, parking of motor vehicles, buildings, structures, drainage and fencing associated with the residential use. Summary of Decision: The application fails and no award of costs is made.
The submissions for the appellant
1. In relation to a full award, the case for a temporary planning permission was not properly assessed by the Council. It is apparent that the Council does not understand the issues and National and Regional guidance relating to the provision of sites for gypsies and travellers. Provision should have already been made in the period up to 2011 which reflected unmet need, and due regard should have been had to the support in Circular 1/06 for the transitional arrangements pending allocations through the Development Plan system, taking account of the lesser harm to the Green Belt from a temporary site.
2. The Council behaved unreasonably by not granting planning permission for the western site following a proper balancing exercise across all the issues, including human rights. The costs to the appellant of the inquiry were unnecessary and wasteful.
3. In relation to a partial award, with reference to Circular 8/93 paragraphs 21- 25, the reason for issuing the enforcement notice concerning flooding was unreasonable, and has not been substantiated.
4. The Council was unreasonable for requiring a Flood Risk Assessment (FRA) as the site is less than 1 hectare and is classified as Flood Zone 1. The aggregation of two appeal sites, thus triggering the requirement for a FRA, was unreasonable, particularly as separate enforcement notices were issued. All the appellant’s costs related to the flood risk issue were unnecessary.
5. In the event that it is found that that the Council was correct to aggregate the sites and require a FRA, it was clear from the FRA that there was no flood risk
Costs Decision APP/R3705/C/08/2088698
on the site, and that this reason for issuing the notice should have been withdrawn.
6. The approach of the Environment Agency to the development was one of an unsupported policy objection as indicated in the Agency’s responses to the examination of its evidence. There was no support in fact, analysis or anecdotal evidence to show that the western appeal site floods. The maintaining of an objection comprising nothing more than an unreasonable policy objection is not acceptable and unreasonable, as commented on by the House of Lords judgement in Chikwamaba v SS for the Home Department [2008] UKHL 40 .
The response by North Warwickshire Borough Council
7. There has been no unreasonableness in the way in which the Council has approached the exercise of compiling a site allocations Development Plan Document (DPD). It is in line with many other Councils and a reasonable timetable is being pursued. Circular 1/06, paragraph 43, requires that Councils should consider preparing site allocations DPD’s in parallel with or in advance of the Core Strategy. This falls far short of the assertion that the Council has been unreasonable if it has not done so, such as to be the basis of a costs application. This is not what the Circular intended, and it would have been expressed differently if it had been intended to be a mandatory step.
8. The West Midlands Interim Regional Strategy was guidance to Councils, and, again, there can be no basis for a costs application. The guidance has not presented itself as a practical approach in North Warwickshire as provision for gypsy and traveller sites has been made, and permissions may come forward ahead of the timetable in any event.
9. Circular 1/06, paragraph 12(c), simply says that the intentions of the Circular are to increase significantly the number of gypsy sites in appropriate locations. This does not indicate particular actions required by Councils. Furthermore, the appeal site is not an appropriate site.
10. Proper consideration was given to the issue of unmet need, and future need is part and parcel of the substantial weight to be given to this material consideration which the Council did take into account.
11. In relation to human rights, the Council took full account of the personal circumstances of the appellant on the information that was available. The exercise of evaluating very special circumstances for the development is part and parcel of considering the appellant’s human rights. Circular 1/06, paragraph 12(l) does not add anything to this duty, as it again simply sets out the intention of the Circular and does not dictate the form of action to be taken by the Council.
12. In relation to these policy matters, there was no unreasonable behaviour by the Council.
13. As for the flooding objection, the Council has a duty to consider flooding, especially when the Environment Agency raises concerns; to behave otherwise would be negligent. The Council was advised, during the time it was considering the planning application, that a Flood Risk Assessment (FRA) would
2 Costs Decision APP/R3705/C/08/2088698
be forthcoming. If it had been submitted, then the issue at the inquiry might have been handled differently. The FRA was only produced prior to the inquiry and the Environment Agency was concerned about the lack of sufficient detail.
14. There was no unreasonable behaviour by the Council in pursuing the objection at the inquiry.
Conclusions
15. Circular 8/93, now cancelled, advised that, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused another party to incur or waste expense unnecessarily.
16. The cancellation of Circular 8/93 by Circular 3/09 applies with effect from 6 April 2009 to all appeals made on or after that date. The ability to apply for an award of costs for appeals pre-dating 6 April 2009 is derived from the legislation cited at the head of this costs decision. The conditions for an award to be made, set out in the previous paragraph, are carried forward in the new Circular. Therefore for appeals like this one made before 6 April 2009, I see no difficulty in deciding whether or not to make an award of costs in the light of these well established principles.
17. Dealing first with the claim that the Council had unreasonably failed to comply with the national and regional guidance on gypsy and traveller site provision, whilst it is clear that the Council has not reached the stage of producing a DPD which would identify sites, to my mind the actual provision of sites has taken place in a way which is compatible with the transitional arrangements set in Circular 1/06. I have set out my findings on this matter in the appeal decision, and it is not appropriate to repeat those findings here. Suffice it to say that I consider that the provision of sites has kept pace with the identified need arising such that the Council cannot be regarded as having behaved unreasonably in relation to national and regional policy and guidance.
18. As for the claim that the Council did not properly consider the grant of a temporary planning permission, it was faced with the unlawful occupation of the site in the Green Belt and, to be weighed against that, an account of the appellant’s circumstances which may not have been persuasive on the available information. Given the position on the provision of sites within the District, and other objections arising from flood risk and highway safety, it seems to me that there is no clear indication that the Council did not undertake a balancing exercise which would lead to the conclusion that the inquiry was unnecessary.
19. In coming to this conclusion, I have borne in mind the advice in Circular 3/09, paragraph B13, that, in relation to costs awards, when an appellant is seeking planning permission for development in Green Belt, which would be inappropriate according to Planning Policy Guidance (PPG) Note 2, it will not be sufficient for the appellant to rely on a genuine belief that there are very special circumstances to justify overriding the Green Belt presumption stated in PPG2. It is for the appellant to show why permission should be granted by demonstrating what the very special circumstances are, and providing evidence to justify an exception to general Green Belt policy.
3 Costs Decision APP/R3705/C/08/2088698
20. Turning to the application for partial costs in relation to the flooding issue, the guidance in Circular 8/93, Annex 3 paragraphs 9 & 10, has been taken forward into Circular 3/09, paragraphs B23 & B24, which reminds planning authorities that they are expected to give thorough consideration to relevant advice or representations from statutory consultees such as the Environment Agency. While it is the primary responsibility of planning authorities to either accept or reject that advice, they should clearly understand the basis for doing so and should provide, where necessary, a clear and rational explanation of the position taken. What matters in any subsequent costs application is whether or not the authority can show good reason for accepting, or rejecting the consultee’s advice.
21. Planning Policy Guidance (PPG) Note 25 Annex D recommends that a Flood Risk Assessment (FRA) is required for development in Flood Zone 1 for sites over 1 hectare. In this case, whilst I acknowledged in the decision on the appeals that the site is less than 1 hectare, I came to the conclusion that both eastern and western sites should be considered together for flood risk purposes. By the time of the inquiry, a FRA had been submitted which indicated that there was no flood risk over and above that normally associated with Flood Zone 1. The Environment Agency maintained its objection at the inquiry, and, to my mind, the Council had some reason to accept the Agency’s advice due to the uncertainties about the potential for run-off from adjoining land and the capacity of the culvert under the access, and, on the other hand, no obviously good reason to reject the advice. Taking account of appropriate conditions, I found the flood risk not to be a matter of weight against the development, but that was with the benefit of a thorough examination of all the evidence, and does not call into question the Council’s behaviour on the matter in relation to the advice from the Environment Agency to the extent that a partial award of costs is justified.
22. With regard to the role of policy as the basis of an objection, the appellant referred to the judgement in Chikwamba v SS Home Dept [2008] UKHL 40 which concerned an appeal under the Immigration & Asylum Act 1999. The comments of Lord Scott were highlighted, that policies which involve people cannot be, and should not be allowed to become rigid inflexible rules which elevates policy to dogma. However, in this case, the objection relating to flooding involved the interplay between the advice of the Environment Agency and judgement by the Council about whether to accept or reject the advice. With reference to my findings in the previous paragraph, I do not consider that this amounted to an example of the application of policy as a rigid, inflexible rule.
23. I consider that unreasonable behaviour resulting in unnecessary expense, as described in Circular 3/09, has not been demonstrated and I therefore conclude that an award of costs is not justified.
FORMAL DECISION
24. I refuse the application for an award of costs.
Paul V Morris
Inspector
4
The Planning Inspectorate Costs Decision 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Inquiry held on 23-25 June, 15 & 19 Bristol BS1 6PN October 2009, 26-29 January 2010 0117 372 6372 email:[email protected] ov.uk
by Paul V Morris DipTP MRTPI
an Inspector appointed by the Secretary of State Decision date: for Communities and Local Government 13 October 2010
Costs application in relation to Appeals Ref: APP/R3705/C/08/2088816 & 2088818 & A/08/2088454 Wrens Nest (eastern site), Heanley Lane, Hurley CV9 2LR • The application is made under the Town and Country Planning Act 1990, sections 174, 320 and Schedule 6, and the Local Government Act 1972, section 250(5). • The application is made by North Warwickshire Borough Council for an award of costs against Mr Hope Taylor & Mrs Lisa Taylor. • The inquiry was in connection with: (a) appeals against an enforcement notice alleging the change of use of the land from agricultural to a residential caravan site for gypsy families together with the formation of hardstanding areas, access road, parking of motor vehicles, buildings, structures, drainage and fencing associated with the residential use, and (b) an appeal against the refusal of planning permission the change of use to a residential caravan site for three gypsy families. Summary of Decision: The application fails and no award of costs is made.
The submissions for North Warwickshire Borough Council
1. The application is for a full or partial award based on the conduct of both the appellants’ Counsel and the planning witness. It is made with reference to Circular 8/93 and the principle that the costs award regime seeks to increase the discipline of parties when taking action within the planning system.
2. The main points of unreasonable behaviour by the appellants’ Counsel are as follows: repeatedly speaking with a raised voice and bombastic manner over the Inspector and commenting that he was acting unfairly and injudiciously, outrageously and unlawfully, and repeatedly expressing no confidence in the running of the inquiry; speaking with a raised voice at Counsel for the Council and threatening to report Counsel for the Council to the Bar Council for raising an objection to an additional witness for the appellants; excessive examination- in-chief of the appellants’ planning witness; handing in new documents during the presentation of evidence; repeatedly interrupting discussions with Counsel and the witnesses in the conjoined appeal; prolonged argument in an effort to secure a further inquiry adjournment to recall the appellants’ planning witness when arrangements had been put in place for the relevant matters to be dealt with in writing; prolonged argument concerning the transparency of a post- inquiry site visit to be carried out by the Inspector.
3. In addition, no Statement of Case was submitted for the appellants, despite repeated requests by the Council; no response was received to the letter of 8
Costs Decision APP/R3705/C/08/2088816 & 2088818 & A/08/2088454
January 2010 dealing with relevant matters, and the planning witness did not subsequently appear at the reconvened inquiry.
4. An application in these terms is made with regret and disappointment, but the length of this unmeritorious appeal is unjustified and has been extended by the unreasonable behaviour of the appellants’ representatives. The inquiry and the Inspector have been shown no respect, and there has been complete disregard to the attending public. The costs arising from such behaviour should be borne by those responsible, not the Council.
The response by the appellants
5. All the criticisms made could be directed at the behaviour of Counsel for the Council. It is the duty of Counsel for the appellants to act fearlessly in defence of the clients, and such a costs application is a device to seek to gag a Counsel. Any conflicts or tension over procedure, for instance the late submission of documents, can and should be accommodated in the course of the inquiry.
6. There was no unreasonable behaviour as described by the Council and therefore no additional costs.
Conclusions
7. Circular 8/93, now cancelled, advised that, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused another party to incur or waste expense unnecessarily.
8. The cancellation of Circular 8/93 by Circular 3/09 applies with effect from 6 April 2009 to all appeals made on or after that date. The ability to apply for an award of costs for appeals pre-dating 6 April 2009 is derived from the legislation cited at the head of this costs decision. The conditions for an award to be made, set out in the previous paragraph, are carried forward in the new Circular. Therefore for appeals like this one made before 6 April 2009, I see no difficulty in deciding whether or not to make an award of costs in the light of these well established principles.
9. The inquiry dealing with these appeals, and the conjoined appeal on the adjoining site, took nine days of inquiry time spread over a period of some seven months. The main issue here is whether there was unreasonable behaviour by the appellants’ representatives, resulting in the Council incurring unnecessary costs.
10. Circular 3/09, Annex Part A – General principles and procedures, points out that the costs regime is aimed at ensuring as far as possible that all those involved in the appeal process behave in an acceptable way, and that all those involved in the appeal process who feel justified in complaining about others’ behaviour use the guidance in the Circular effectively, by pursuing substantiated applications for costs in a robust but realistic way.
11. Other than the general principle set out above, Circular 3/09 contains no detailed guidance on the matter of individual behaviour, and, therefore, I have approached this matter with caution as there are no obvious parameters which might aid the process of reaching a reasonably objective decision. In passing, I note that the Town and Country Planning (Enforcement) (Determination by
2 Costs Decision APP/R3705/C/08/2088816 & 2088818 & A/08/2088454
Inspectors) (Inquiries Procedure) (England) Rules 2002 1 refer to the power given to the Inspector under Rule 17(9) to require any person appearing or present at an inquiry to leave who, in his opinion, is behaving in a disruptive manner. Circular 2/02, paragraph 12, dealing with enforcement appeal procedures, points out that, whilst observing the rules of natural justice at all times, Inspectors will, in the interests of all parties, exercise tight control over advocacy and cross-examination.
12. Whilst the procedure rules and the procedure guidance indicate that personal or individual behaviour is a matter of concern in the conduct of an inquiry, the examples set out in Circular 3/09 of where costs awards may be appropriate, whilst not exclusive, do not refer to such matters.
13. In this context, there can be no criticism of an advocate who is reasonably presenting the case for, or defending the interests of, the client. That must include making submissions which challenge or contradict the opinions and rulings of the Inspector, or the opinions of an opposing advocate. But a line can be drawn, even taking account of the adversarial nature of an inquiry, where the rhetoric of those submissions is confrontational and repetitive, and, as a result, puts at risk the efficient progress of the inquiry.
14. Disputes over the presentation of evidence may arise both in terms of the time taken and the content. This can be commonplace in an inquiry. Where guidance has been given on the presentation of evidence which reflects the prior availability of proofs of evidence, the carrying out of that task in a full and proper manner by the parties, for their benefit and of the inquiry process as a whole, depends on a degree of co-operation, not simply the single-minded pursuit of client interest. When disputes occur, providing there is no threat to natural justice, the efficient progress of the inquiry is paramount. Clear and persistent disregard for co-operation is contrary to that principle.
15. In these inquiry proceedings, there were examples of behaviour by Counsel for the appellants which put at risk the efficient progress of the inquiry. During the presentation of the witness evidence, particularly that of the witness on planning matters, the examination-in-chief relied heavily on confirming matters with the witness which were clearly and concisely expressed in the written proof of evidence. Whilst this may be necessary in instances where this leads to fresh insights by the witness, and therefore needs to be tolerated to some extent, to my mind, a form of examination which is dominated by points of confirmation, often with repetition, is inappropriate in the context of pre- inquiry availability of evidence.
16. It is within the remit of the Inspector to direct an advocate on these matters, together with reminders about the time taken to carry out the examination-in- chief, but, in this case, there was a marked reluctance by Counsel to acknowledge directions and reminders, on occasions in an argumentative manner. These encounters caused unnecessary interruption to the flow of the examination.
17. Further areas of concern arose from the fact that the inquiry covered two conjoined appeals with separate representation for each set of appellants.
1 S.I. 2002 No.2685
3 Costs Decision APP/R3705/C/08/2088816 & 2088818 & A/08/2088454
Whilst there was full recognition in the inquiry proceedings that the supporting cases were presented separately in the interests of each set of appellants, it was inevitable that there would be some overlap as there were many common factors. In theory, this should have resulted in some saving of time, but in practice, it did not.
18. The most striking example of this was a dispute over the admissibility of new evidence on noise which arose just prior to the resumption of the inquiry on 15 October 2009. Whilst this evidence was initially produced by the appellant for the western site, and Counsel for the western site appellant was therefore given the opportunity to make submissions on its admissibility, Counsel for the eastern site made frequent assertive interventions despite repeated requests for order and consideration. Whilst Counsel for the eastern site was not initially responsible for introducing the evidence, his role intensified and prolonged the dispute.
19. A further prolonged dispute took place in relation to dealing with matters arising in the final period of the inquiry from 26-29 January which might properly have been dealt with by recalling the appellants’ planning witness, but who was absent from the inquiry during this period due to other commitments. Alternative arrangements were offered to deal with any additional representations by the appellants and the Council in writing after the close of the inquiry, to ensure natural justice, but this was met by resistance by the appellants’ Counsel.
20. In addition, an issue had arisen in the final period of the inquiry from 26-29 January concerning an operational gypsy and traveller site, The Griff, in an adjoining District. The formal accompanied site visit for the inquiry appeals had already taken place on 26 January, and because of a general wish from all parties that I should visit The Griff site to put the evidence into context, an offer was made to carry out an unaccompanied visit after the close of the inquiry. This was to avoid having to make complex arrangements to assemble all parties on a particular date, which I judged not to be necessary in any event. This offer was met by strong opposition from the appellants’ Counsel with demands that all parties be present, before agreement was reached.
21. As I have mentioned previously, I fully acknowledge the adversarial nature of an inquiry, and that disputes can arise about procedure and content which might occasionally result in exchanges between participants which quickly pass, and are simply part of the cut and thrust of an inquiry to be tolerated by all sides in the interests of the efficient progress of the inquiry. However, in my view, both in the examples I have given and in relation to other matters during the inquiry, including dealing with additional evidential documents submitted during the inquiry, the appellants’ Counsel exhibited a consistent pattern of behaviour which exceeded the level which should be tolerated in the normal course of events.
22. If directions had been dealt with by the appellants’ Counsel in a co-operative manner, on the assumption that disagreements could have been highlighted in closing submissions, this would have been to the benefit of all concerned.
23. Turning to the lack of Statement of Case and related matters, I acknowledge that no Statement of Case was provided, contrary to Inquiries Procedure Rule
4 Costs Decision APP/R3705/C/08/2088816 & 2088818 & A/08/2088454
6(3), but I do not think that this unduly hindered the Council in drawing up its own evidence which covered all relevant matters. As for the non-response to correspondence prior to the resumption of the inquiry in January 2010, and the necessity of dealing with evidence in the absence of the appellants’ planning witness, I consider that this is covered by my findings in paragraph 19.
24. Taking all these matters into account, in relation to the first part of the claim, I consider that aspects of the appellants’ Counsel’s behaviour were unreasonable, in the sense of the ordinary meaning of this word, in the context of the normal conduct of an inquiry as part of the appeal process, and which prolonged the inquiry. However, I come back to the point made earlier that Circular 3/09 contains no detailed guidance on the matter of individual behaviour or the behaviour of a party’s professional representative in relation to awards of costs. I have also borne in mind the advice in paragraph A24 that an applicant for costs will need to demonstrate clearly how any alleged unreasonable behaviour has resulted in unnecessary or wasted expense and decisions will be taken on the balance of probability. Expense should be identifiable or capable of being quantified in some tangible way. Expense may be unnecessary or wasted because the entire appeal could have been avoided or because time and effort was expended on one part of a case that subsequently turned out to have been abortive. In my opinion, even if individual behaviour was to be acknowledged as an appropriate criterion for the award of costs, the resultant requirement that the expense should be identifiable or capable of being quantified has not been satisfied in this case. There is a balance to be struck between presenting a robust case and wasting inquiry time, which in this case it is not possible for me to quantify. If, nonetheless, the Council remains concerned about aspects of the appellants’ Counsel’s behaviour at the inquiry, I consider that it could pursue this by referring the matter to the Bar Council.
25. I find that unreasonable behaviour resulting in unnecessary expense, as described in Circular 3/09, has not been demonstrated and I therefore conclude that an award of costs is not justified.
FORMAL DECISION
26. I refuse the application for an award of costs.
Paul V Morris
Inspector
5
The Planning Inspectorate Costs Decision 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Inquiry held on 23-25 June, 15 & 19 Bristol BS1 6PN October 2009, 26-29 January 2010 0117 372 6372 email:[email protected] ov.uk
by Paul V Morris DipTP MRTPI
an Inspector appointed by the Secretary of State Decision date: for Communities and Local Government 13 October 2010
Costs application in relation to Appeal Ref: APP/R3705/C/08/2088698 Wrens Nest (western site), Heanley Lane, Hurley CV9 2LR • The application is made under the Town and Country Planning Act 1990, sections 174, 320 and Schedule 6, and the Local Government Act 1972, section 250(5). • The application is made by North Warwickshire Borough Council for an award of costs against Mr J Smith. • The inquiry was in connection with an appeal against an enforcement notice alleging the change of use of the land from agricultural to a residential caravan site for gypsy families together with the formation of hardstanding areas, access road, parking of motor vehicles, buildings, structures, drainage and fencing associated with the residential use. Summary of Decision: The application fails and no award of costs is made.
The submissions for North Warwickshire Borough Council
1. The application is for a full or partial award based on the attempt to introduce a new cycle of evidence to the inquiry on behalf of the appellant and the conduct of the appellant’s planning witness. It is made with reference to Circular 8/93 and the principle that the costs award regime seeks to increase the discipline of parties when taking action within the planning system.
2. A proof of evidence on noise matters was submitted to the inquiry at a late stage before the reconvening of the inquiry on 15 October 2009 with no prior notice. At the inquiry, the appellant refused to accept a ruling by the Inspector that the evidence would not be considered, and persisted, in a forceful and wholly unnecessary way, to require the Inspector to give a ruling in a specific format, as well as expressing the view that the evidence would be called in any event. This was supported by Counsel for the conjoined appeal who repeatedly expressed no confidence in the running of the inquiry and the Inspector.
3. This incident took over half a day of inquiry time.
4. In addition, there was excessive examination-in-chief of the appellant’s planning witness, substantially seeking comment on matters which did not appear in his proof of evidence. This was particularly the case in relation to details of a site visit gathered during the inquiry adjournment, and which could have been declared to the Council in time to allow consideration of that evidence. This was seeking to ambush the Council.
Costs Decision APP/R3705/C/08/2088698
5. The planning witness constantly procrastinated, interrupted and made comments during evidence and questions which required interjections by the Inspector.
6. An application in these terms is made with regret and disappointment, but the length of this unmeritorious appeal is unjustified and has been extended by the unreasonable behaviour of the appellant’s representatives. The inquiry and the Inspector have been shown no respect, and there has been complete disregard to the viewing public. The costs arising from such behaviour should be borne by those responsible, not the Council.
The response by the appellant
7. Great exception is taken to these comments as there has been no disrespect for the inquiry which is to robustly test the evidence. The application for costs is fundamentally flawed as it does not identify any wasted costs and is simply a gagging manoeuvre.
8. On the noise evidence, the issue was identified on the opening day of the inquiry and the appellant proceeded to produce additional evidence. The evidence was ruled out and the appellant carried on with the case.
9. The appellant’s planning witness put a significant amount of cogent evidence to the inquiry and he acted in a proper way, both in general and in relation to the noise evidence.
10. The application is baseless as there was no unreasonable behaviour.
Conclusions
11. Circular 8/93, now cancelled, advised that, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused another party to incur or waste expense unnecessarily.
12. The cancellation of Circular 8/93 by Circular 3/09 applies with effect from 6 April 2009 to all appeals made on or after that date. The ability to apply for an award of costs for appeals pre-dating 6 April 2009 is derived from the legislation cited at the head of this costs decision. The conditions for an award to be made, set out in the previous paragraph, are carried forward in the new Circular. Therefore for appeals like this one made before 6 April 2009, I see no difficulty in deciding whether or not to make an award of costs in the light of these well established principles.
13. The inquiry dealing with this appeal, and the conjoined appeals on the adjoining site, took nine days of inquiry time spread over a period of some seven months. The main issue here is whether there was unreasonable behaviour by the appellant’s representatives, resulting in the Council incurring unnecessary costs.
14. Circular 3/09, Annex Part A – General principles and procedures, points out that the costs regime is aimed at ensuring as far as possible that all those involved in the appeal process behave in an acceptable way, and that all those involved in the appeal process who feel justified in complaining about others’
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behaviour use the guidance in the Circular effectively, by pursuing substantiated applications for costs in a robust but realistic way.
15. Other than the general principle set out above, Circular 3/09 contains no detailed guidance on the matter of individual behaviour, and, therefore, I have approached this matter with caution as there are no obvious parameters which might aid the process of reaching a reasonably objective decision. However, I note that the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002 1 refer to the power given to the Inspector under Rule 17(9) to require any person appearing or present at an inquiry to leave who, in his opinion, is behaving in a disruptive manner. Circular 2/02, paragraph 12, dealing with enforcement appeal procedures, points out that, whilst observing the rules of natural justice at all times, Inspectors will, in the interests of all parties, exercise tight control over advocacy and cross-examination.
16. Whilst the procedure rules and the procedure guidance indicate that personal or individual behaviour is a matter of concern in the conduct of an inquiry, the examples set out in Circular 3/09 of where costs awards may be appropriate, whilst not exclusive, do not refer to such matters.
17. Dealing first with the issue of noise evidence, the appellant’s agent informed the Planning Inspectorate on 12 October 2009 that a proof of evidence had been produced containing a noise survey carried out at the Caravan Park, Alvecote, which was submitted for the resumption of the inquiry on 15 October. A witness would be called to present the evidence. The appellant was informed, on 14 October, on the advice of the Inspector, that this witness evidence would not be heard at the inquiry as the adjournment of the inquiry on 25 June was brought about by the need for more time to complete the inquiry as started, not to allow more time to prepare new evidence and to call new witnesses .
18. At the resumption of the inquiry on 15 October, this opinion was challenged by the appellant’s representatives on the ground that it was relevant evidence and should be heard.
19. It was explained that the submission of this evidence had come about during an adjournment without any prior indication, no direction or request had been made at the adjournment of the inquiry on 25 June for such evidence to be produced, and the submission of such evidence was contrary to Inquiries Procedure Rule 15.
20. The appellant’s contention that the issue was identified on the opening day of the inquiry is not accepted. There was no reference to an issue concerning noise at Alvecote gypsy and traveller site in the proof of evidence of the appellant’s witness on planning matters, and no indication was given that a witness with a proof of evidence would be called on this matter when the appellant’s list of witnesses was declared at the opening of the inquiry.
21. At the resumption of the inquiry on 15 October, there was persistent refusal by the appellant’s Counsel to accept direction that the evidence would not be admitted, together with the insistence that a ruling should be made, under
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Inquiries Procedure Rule 17(6), that the refusal to permit the giving or production of the evidence was based on the evidence being irrelevant or repetitious. No such a ruling was made, as it was neither appropriate nor necessary.
22. During the course of the dispute, it was made clear that, if the issue of noise at the Alvecote gypsy and traveller site became a matter which required clarification through additional evidence during the course of the ongoing inquiry, then the evidence could be submitted in writing together with a written response from the Council. This was not accepted.
23. In the event, the noise evidence was not presented by the appellant, but the appellant’s witness asked to appear and give evidence as a ‘third party’. In accordance with Inquiries Procedure Rule 11(2), permission was given for the evidence to be heard, bearing in mind that such permission should not be unreasonably withheld.
24. The dispute was also prolonged because of the involvement of Counsel for the appellants of the eastern site in the conjoined appeal proceedings. This has been dealt with, in its own right, in the costs decision relating to the eastern site, but it is clear to me that the appellant’s representatives, subject of this costs application, were content with supportive interventions from Counsel for the eastern site, which intensified and prolonged the dispute, whilst not discouraging these interventions in the interests of the efficient progress of the inquiry.
25. This confirms my view that there was unreasonable behaviour by the appellant’s representatives in attempting to force the hearing of noise evidence to be presented by an additional witness through persistent refusal to accept direction on this matter. In coming to this conclusion, I have borne in mind the advice in Circular 3/09, paragraph A28, that parties, to minimise the risk of an award of costs, should actively review their cases, respond promptly to changing circumstances, and provide a clear explanation of a revised stance or position, with nothing coming as a surprise throughout the appeal process.
26. I fully acknowledge the adversarial nature of an inquiry, and that disputes can arise about procedure and content which might occasionally result in exchanges between participants which quickly pass, and are simply part of the cut and thrust of an inquiry to be tolerated by all sides in the interests of the efficient progress of the inquiry. However, in my view, the behaviour which I have described exceeded the level which should be tolerated in the normal course of events.
27. Turning to the claim of excessive examination-in-chief of the appellant’s planning witness, and the behaviour of that witness, I acknowledge that the examination questions strayed into areas which were not directly addressed in the proof of evidence. I have borne in mind, however, that it is accepted practice to seek the views of a witness on other matters raised, or anticipated, in the opposing case(s), as there may be no further opportunity to respond. That said, the examination-in-chief did take an excessive amount of time, which reflected that answers were often drawn out, with over-reliance on setting a context for the answers which, more often than not, is unnecessary.
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28. As for the witness behaviour in cross-examination, I make the same point that answers were often drawn out, with over-reliance on setting a context for the answers, which indicates to me that the witness did not fully grasp the need to assist the inquiry by giving answers in as direct a manner as possible. There was unnecessary repetition, and a lack of appreciation that the function of the witness is to answer questions on the evidence presented, and not to assume the roles of advocate or Inspector.
29. However, it is the duty of the Inspector and advocates to make sure that the questions and answers relate to relevant issues, and do not repeat or confirm written evidence already before the inquiry, and that was in mind at the time.
30. That said, in relation to the first part of the claim in particular, I consider that aspects of the appellant’s representatives’ behaviour were unreasonable, in the sense of the ordinary meaning of that word, in the context of the normal conduct of an inquiry as part of the appeal process, and which prolonged the inquiry. However, I come back to the point made earlier that Circular 3/09 contains no detailed guidance on the matter of individual behaviour or the behaviour of a party’s professional representative or witness in relation to awards of costs. I have also borne in mind the advice in paragraph A24 that an applicant for costs will need to demonstrate clearly how any alleged unreasonable behaviour has resulted in unnecessary or wasted expense and decisions will be taken on the balance of probability. Expense should be identifiable or capable of being quantified in some tangible way. Expense may be unnecessary or wasted because the entire appeal could have been avoided or because time and effort was expended on one part of a case that subsequently turned out to have been abortive. In my opinion, even if individual behaviour was to be acknowledged as an appropriate criterion for the award of costs, the requirement that the resultant expense should be identifiable or capable of being quantified has not been satisfied in this case. There is a balance to be struck between presenting a robust case and wasting inquiry time, which in this case it is not possible for me to quantify. If, nonetheless, the Council remains concerned about aspects of the appellant’s Counsel’s behaviour at the inquiry, I consider that it could pursue this by referring the matter to the Bar Council.
31. I consider that unreasonable behaviour resulting in unnecessary expense, as described in Circular 3/09, has not been demonstrated and I therefore conclude that an award of costs is not justified.
FORMAL DECISION
32. I refuse the application for an award of costs.
Paul V Morris
Inspector
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