Traveller's Appeal Rejected by St Eric
In the newsflash that goes out to our readers who are notified of new articles we said the Traveller's appeal had
been rejected. This article fills out the details of the decision.
In 'Traveller Inquiry' back in February, we reported the start of the Public Inquiry into the appeal by Terrance Collins and
others against a refusal of planning permission for a Traveller's site by FBC, and against Fylde's imposition of enforcement notices requiring the present site to be vacated and re-instated to farmland.
The hearing was going to be decided by the planning inspector, but it was called-in by the Secretary of State who said he would take the decision himself, and the planning inspector should just report his findings and recommendations to SoS. It was
called in because it would "involve proposals which raise important or novel issues of development control, and/or legal difficulties." When we heard that, we said "We'd be amazed if he decided in any way other than refusing the appeal."
Turns out our prediction was right.
On Friday last, the Rt Hon Saint Eric Pickles MP delivered his judgement on the inspector's report and - for the most part - agreed with what the inspector had found.
The long and short of it is that the travellers whose development and occupation of the land had flouted Fylde's planning rules have to vacate the site and restore it to farmland.
Looked at in a bit more detail, the decision is a masterclass in modern political decision-making.
It's more about proving that you've considered it from every angle and come to a balanced considered view than it is about the rights and wrongs of the case. And this has to be done because otherwise there are legal sharks waiting to gorge
themselves on the costs that could follow from legal challenges and appeals.
You can see the full decision from SoS from the next link. It's worth a look, and even here the arguments about whether the Regional Strategies hold sway or not were played out as well. One caution. The decision has not yet been published
electronically on DCLG website so the paper copy has been scanned and optically character recognised to reduce file size. Please note that this can sometimes introduce errant characters - so if you are using it for anything more than personal
interest, please ask for a copy of the source document. You can follow this link to download a copy of the decision.
So what were the policy issues?
Well the decision had to accord with
- the Regional Strategy for the North West of England to 2021 (RS) published in 2008;
- the saved policies of the Fylde Borough Local Plan; and,
- the saved policies of the Joint Lancashire Structure Plan (SP)
St Eric made it clear that it is the Government's intention to revoke RSs - and the provisions of the Localism Bill which is now before Parliament reflect this. But whilst he has taken this matter into account in determining this case, he says he
gives it limited weight at this stage of the parliamentary process.
He also had regard to Circular 1/2006: 'Planning for Gypsy and Traveller Caravan Sites' and believes it is a material consideration, but he has also taken account of his own announcement on 29 August 2010 of his intention to revoke it as he considers
it to be flawed, so he gives less weight to this circular.
He also says the Government has published a draft Planning Policy Statement on Planning for Traveller Sites (in April 2011) and the recent consultation draft National Planning Policy Framework (in July 2011) which we reported in 'Change of Plan?'.
Whilst he had regard to both these documents in his determination of this case, he says that as these documents are for consultation, he has given them little weight.
So what were the main issues?
- The effect of the development on the landscape character of the area and on visual amenity
- The effect on Hardhorn village and its residents
- The effect on highway safety
- The effect on the best and most versatile agricultural land
- The effect on biodiversity and on cultural heritage
- The need for and provision of sites for gypsies and travellers
- The accommodation needs of the occupants of the site and the availability of alternative sites
- The personal circumstances of the occupants of the site
- The sustainability of the site
So what did the Inspector find and where did St Eric agree or differ?
Well, he shared the Inspector's conclusion that the development results in a significant and substantial adverse impact on the landscape and on visual amenity, and that this harm could not be overcome by effective landscaping measures within a
reasonable period of time.
He agreed that it is reasonable to consider Hardhorn village as the nearest settled community and, like the Inspector, he concluded that a residential caravan site of this scale does not respect the small scale of the village and that this weighs
against the development.
He looked at the evidence on anti-social behaviour and decided this matter should carry little weight. Whilst he agreed with the Inspector that there is conflicting evidence on this matter he noted the police had made a clear link between the site
occupants and a number of incidents of criminal and anti-social behaviour. Having also taken account of the relatively short period over which these incidents have occurred, St Eric decided these reports should be given greater weight than the
Inspector had done.
He agreed with the Inspector that the development would result in worsened highway safety.
He also agreed that it involved the loss of agricultural land but he didn't think this matter was that important. Equally he thought that potential harm to the water voles could be minimise, so he gave little weight to that argument as well.
Turning to the provisions that should be made for sites for gypsies and travellers, he noted that, like the Inspector, the evidence of need in the wider area is a significant material consideration weighing in the appellants' favour.
He also said he agreed with the inspector that there are no alternative sites realistically available within Fylde, either for the group as a whole or for its component families, so he concluded that the need of the appellants for accommodation
and the lack of suitable and realistically available alternative sites weighs in favour of the development.
He agreed with the Inspector that, if the travellers were obliged to leave the site with no alternative site to go to, there would be serious disruption to the education of the children currently attending school. He also shared the Inspector's
view that a roadside existence would make access to health care considerably more difficult, with the potential for a harmful effect on the health of some members of the group, including those with significant existing medical conditions, and he
gave moderate weight to the health needs of the site occupants.
But, having carefully balanced these considerations, the Secretary of State concluded that the overall balance did not justify the granting of permanent planning permission for this development.
However, he thought that, whilst an extension of time would prolong the harm to landscape character, visual amenity and highway safety, those considerations must be balanced against the particular circumstances of this group of travellers, and he
thought that a requirement to vacate the site within four months was not sufficient, and he has awarded an extension of time to 12 months.
In the thorny minified that is 'Human Rights' St Eric said he agrees with the Inspector that dismissal of the appeals would be an interference with the occupants' homes and with their private and family lives. However, he said such
interference must be balanced against the wider public interest and, like the Inspector, he is satisfied that the legitimate aim of protecting the environment and safety can only be safeguarded by the dismissal of these appeals combined with the
extension of the period for compliance with the requirements of the enforcement notice.
He said agrees with the Inspector that such a decision would be proportionate and necessary in the circumstances and would thus not result in a violation of the appellants' rights under Article 8 of the European Convention on Human Rights.
In the lunatic world forced on us by the EU, he also had to consider whether his own decision to call-in the appeal amounted to an infringement occupants' Human Rights under Articles 6 and 14.
He noted that the lawfulness and fairness of any decision he takes on a recovered appeal are subject to review through the courts and because of that he believes there is no basis for considering that there has been interference
with the appellants' rights under Articles 6 and 14.
Yes, he really had to do that. A minister of the British Crown is, these days, reduced to justifying his own responsibility.
He had to show he had considered it and all the other points to minimise the risk of his decision being overturned by a court whose right to make decisions is prescribed by European Legislation.
So his overall conclusions were that the appeal development was not in accordance with the development plan as it would cause harm to the landscape character of the area, visual amenity and highway safety.
He has gone on to consider whether there are material considerations which would outweigh this conflict.
He has taken into account the factors that weigh in favour of the appeals which include the unmet need for sites in the wider area,
the lack of available and suitable alternative sites, the strong personal need of the appellants for a settled base and the likely adverse effects on the appellants of a reversion to a roadside existence. However, he considers that these factors
do not outweigh the conflict with the development plan.
So what now.
Well on the face of it the travellers have up to 12 months to travel to somewhere else.
There are probably a number of options open to them, some of which will involve contesting St Eric's decision, and we'll have to wait and see if that happens. If it does, it will probably be within the 12 month period, and it may be that St Eric
expected something like that when he extended the time for vacation to 12 months (a further challenge might have allowed the travellers to stay whilst it was being exercised anyway).
Whether we see the land put back to good agricultural land as they leave is uncertain but we'll have to wait and see there as well.
We guess there will be a collective sigh of relief over Hardhorn and surrounding areas where many people feel their lives have been blighted by increased instances of anti-social behaviour and crime.
Dated: 24 August 2011