Rafferty, R (on the application of) v Secretary of State for Communities and Local Government

A temporary planning permission may be justified where unmet need exists and there is a reasonable expectation that suitable alternative sites will become available at the end of the temporary period. Mere progress towards a site-allocation process does not establish that expectation. The decision-maker must give proper weight to gypsy and traveller needs, including health, education and settled accommodation, but those considerations may be outweighed by serious harm to an Area of Outstanding Natural Beauty. Refusal of permission for land not presently occupied as a home does not necessarily interfere with Article 8 rights. If Article 8 is engaged, the interference must still be assessed by reference to its quality and degree and balanced against the public interest.

The claimants challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of their appeal against refusal of permission to change agricultural land in the Mendip Hills Area of Outstanding Natural Beauty to a residential gypsy site.

The inspector accepted that the proposal would harm the character and appearance of the area, but found limited harm concerning travel and highway safety. The challenge alleged errors concerning temporary permission, gypsy and traveller policy, the claimants’ health and education needs, and Articles 8, 14 and Article 2 of the First Protocol of the European Convention on Human Rights.

1. The claim was dismissed. The inspector had considered whether a temporary permission was appropriate. Circular 01/2006 required a reasonable expectation that planning circumstances would change during a temporary period. The anticipated timetable for the Gypsy and Traveller Accommodation Assessment and later site allocations did not show when suitable, occupiable sites would become available. The inspector was entitled to reject temporary permission.

2. The inspector had not asked the wrong question when considering health and education. He recognised that a settled base was important, particularly for education, but was entitled to distinguish the need for stability somewhere from a compelling need to occupy this environmentally sensitive site. The serious harm to the AONB was not outweighed by the need for this particular site or the other material considerations.

3. The inspector’s Article 8 assessment was legally sustainable. The relevant principles included respect for the enjoyment of a caravan and gypsy identity, the possibility that measures affecting the stationing of a caravan may constitute interference, and the need for proportionality between any interference and a legitimate planning aim. However, the claimants were enjoying their family lives elsewhere and had not established a home on the appeal site. Refusal therefore did not interfere with an existing Article 8 enjoyment in the circumstances.

4. Alternatively, if Article 8 was engaged, the inspector had assessed the quality and degree of the interference and balanced it against protection of the area. Restricting the choice of a future home was materially less serious than removing an established home. The conclusion would therefore have been unchanged.

5. The claimants were ordered to pay the defendant’s costs, summarily assessed at £7,144, subject to assessment of their liability under section 11 of the Access to Justice Act 1999. Permission to appeal was refused.

First-instance judicial review claim under section 288 of the Town and Country Planning Act 1990. Permission to appeal was refused.