Medhurst v Secretary of State for Communities and Local Government

Whether a person is a Gypsy or Traveller for planning purposes is a functional question of fact and degree, assessed by reference to the person’s way of life at the date of determination. Occasional or seasonal travel does not necessarily establish a nomadic way of life.

An Inspector’s reasons are adequate if they intelligibly address the principal controversial issues; the Inspector need not refer to every piece of evidence. Procedural fairness requires an opportunity to address a material issue which could not reasonably have been anticipated. The statutory race equality duty requires due regard to relevant needs, balanced against countervailing planning considerations. It does not require a particular outcome.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s dismissal of her appeal against refusal of planning permission. The proposed development was a temporary residential caravan site in the Green Belt.

The Inspector concluded that the claimant and her family did not have a sufficiently established nomadic way of life to fall within Circular 01/2006. He also found substantial Green Belt and landscape harm, which outweighed their personal circumstances. The claim challenged the Inspector’s assessment of Gypsy status, adequacy of reasons, procedural fairness, compatibility with Article 8, compliance with the race equality duty, and treatment of unmet accommodation need.

1. Claim dismissed. The Inspector was entitled to conclude, as a matter of fact and degree, that the claimant and her sons had not established a nomadic way of life. The relevant question was whether they were actually living a travelling life at the date of determination, assessed against their housing and employment history, including the nature and extent of any work-related travel.
2. The Inspector’s reasons were intelligible and adequately addressed the principal issue. He considered the material evidence but reached a different qualitative assessment from that advanced by the claimant. He was not required to mention every item of evidence.
3. There was no procedural unfairness. The claimant and her adviser knew, or ought reasonably to have known, that Gypsy status was in issue. They had the opportunity to provide written and oral evidence, to respond to cross-examination, and to provide further material.
4. The definition in Circular 01/2006, and its application in this case, did not of itself breach Article 8 of the European Convention on Human Rights, applying McCann v Secretary of State for Communities and Local Government and Basildon District Council [2009] EWHC 917 (Admin) and Wingrove v Secretary of State for Communities and Local Government and Mendip District Council [2009] EWHC 1476 (Admin).
5. Section 71(1) of the Race Relations Act 1976 required due regard to the need to promote equality of opportunity and good relations. It did not require a particular result or an express reference to the statutory duty. The Inspector had substantively considered the family’s ethnic identity, personal circumstances and need for accommodation, while giving due weight to the countervailing Green Belt and landscape considerations.
6. The unmet need for Gypsy sites was not material to the claimant’s entitlement to the benefits of Circular 01/2006 because she did not satisfy its definition. Nevertheless, the Inspector separately considered the family’s ethnic Gypsy identity, wish not to live in bricks and mortar, accommodation difficulties and personal needs. He was entitled to conclude that those matters were outweighed by Green Belt protection.

The defendant was awarded costs, subject to assessment if not agreed. Costs incurred after the grant of legal aid were not to be enforced without leave of the court. Permission to appeal was refused, but time for filing and serving any draft notice of appeal was extended to 4.00 pm on 5 January 2012.

The judgment was a first-instance judicial review under section 288 of the Town and Country Planning Act 1990, challenging a Planning Inspector’s dismissal of the claimant’s planning appeal. Permission to appeal was refused.