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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O'Connor v Secretary of State for the Communities and Local Government & Anor [2013] EWCA Civ 263 (07 February 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/263.html Cite as: [2013] EWCA Civ 263 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JOHN HOWELL QC)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWISON
and
LORD JUSTICE McCOMBE
____________________
O'CONNOR |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR THE COMMUNITIES AND LOCAL GOVERNMENT & ANR |
Respondents |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Mr Paul Greatorex (instructed by Gray's Inn Square) appeared on behalf of the Respondent.
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Crown Copyright ©
Lord Justice Lewison:
"Within the Green Belt, as shown on the proposals map, permission will not be given except in very special circumstances."
And then certain exceptions to that policy are stated. The relevant part of PPG 2 provides that there is a general presumption against inappropriate development within Green Belts and that such development should not be approved "except in very special circumstances". Annex E specifically states that "Gypsy sites are not normally appropriate in Green Belts. PPG 2 also says:
"Inappropriate development is, by definition, harmful to the Green Belt. ... Very special circumstances to justify inappropriate development will not exist unless the harm, by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
"45. Advice on the use of temporary permissions is contained in paragraphs 108 to 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area, but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary planning permission.
46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD [development plan documents]. In such circumstances, local planning authorities are expected to give substantial weight to an unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay."
Paragraph 49 of the same circular reinforces the general presumption against inappropriate development within Green Belts, and goes on to say that:
"National planning policy on Green Belts applies equally to applications for planning permission for gypsies and travellers and the settled population."
This court has held that although this paragraph does not specifically refer to the paragraphs on temporary permissions, there is nothing to suggest that this part of the advice is inapplicable to Green Belt applications: see Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692, [2009] PTSR 19 at [12].
"The material considerations to which regard must be had in granting any permission are not limited or made different by a decision to make the permission a temporary one. Thus, the reason for granting a temporary permission can never be that a time limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise, they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities. If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted, then the only course open is to refuse permission. These considerations will mean that a temporary permission will normally only be appropriate. Either way, the applicant proposes temporary development, but when a trial run is needed to order to assess the effect of development on the area."
"Whether the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development."
He answered that question in two parts, first by considering whether permanent planning permission should be granted, and then by asking whether temporary planning permission should be granted. On the question of permanent planning permission he said:
"27. As I have indicated, I must attach substantial weight to the harm to the Green Belt by reason of the proposal's inappropriateness. I have also found that the proposal would result in significant harm to the openness of the Green Belt. In addition, the proposal would cause material harm to the local landscape (which is in the Green Belt) and limited harm to the Queen Charlton Conservation Area.
28. However, to be weighed against these factors are a number of considerations in favour of the proposal. These are the need for additional gypsy site in the Council's area, that the shortage in unlikely to be addressed until at least two years' time, the possibility that some of the sites to be allocated by the DPD could be in the Green Belt, the Appellant and her family's need for Gypsy accommodation, the absence of any identified site to which they could move, the personal circumstances of Mrs O'Connor and her family in terms of health and education, and the hardship which they could face by eventually being made homeless. I recognise that this would represent a substantial interference with the home and family life of the Appellant and her family. I am also mindful of the duties placed upon me by the legislation relating to race relations. In particular, I am aware that a return to the roadside existence could have a negative impact on race relations.
29. In my judgment, however, these material considerations in favour of the proposal, even when added together, would not clearly outweigh the substantial harm which the proposal would cause, as mentioned in paragraph 27."
"30. Circular 11/95 states that a temporary permission may be justified when it is expected that the planning circumstances will change in a particular way at the end of the temporary period. Circular 01/2006 indicates that, where there is an unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, decision makers should give consideration to granting temporary permission. Circular 11/95 also states that the material considerations to which regard must be had in granting permission are not limited or made different by a decision to make the permission a temporary one, and that the reason for granting a temporary permission can never be that a time-limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise, they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities and, if this is not possible, the only course open is to refuse permission.
31. On the basis of the information available, I am satisfied that the planning circumstances are likely to change within Bath and North East Somerset within the next two to three years as work on the DPD progresses and sites are subsequently brought forward following its adoption. However, the harm that the proposal would cause to the Green Belt and to the local landscape, would be unacceptable, even for a temporary period of, say, two or three years. The harm could not be adequately mitigated by conditions. As a result, temporary permission in not justified."
His ultimate conclusion in paragraph 34 was this:
"My overall conclusion, therefore, is that the other material considerations in favour of the proposal do not clearly outweigh the harm to the Green Belt and other harm that I have found. I have given consideration to a temporary planning permission but I have concluded that this would not be appropriate as it would not overcome the overriding planning objections that have been identified. Consequently, the appeal proposal would not be justified on the basis of very special circumstances."
Lord Justice McCombe:
Lord Justice Laws:
Order: Application refused.