HARRISON v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant, Jean Harrison, is a United Kingdom national, born in 1946 and living in Christchurch. She is represented before the Court by Mr M. Murdoch, a lawyer practising in Birmingham. The respondent Government are represented by Mr H. Llewellyn of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a Romany traveller or gypsy. In 1985 she purchased her plot of land at 22E Dudmoor Farm Road, Christchurch, County Dorset and since then she has lived in a caravan or caravans on the plot with her aged mother and the applicant's three grandchildren who attend local schools. The applicant's mother suffers from poor health and requires constant attention. She has lived in caravans all her life. The applicant at the time of introducing the applicant had employment in a local supermarket, but herself also has difficulty reading and writing. A number of other gypsy families lived in caravans in adjacent sites. The Dudmoor Valley had been used by gypsies for at least 40 years and the group resident there were known as the “Dudmoor gypsies”. The applicant's request to Christchurch Borough Council (the “Council”) for planning permission to station her caravans on her land was refused sometime in 1986. The reasons given for the refusal were: 1. that the site fell within an area designated as Green Belt and was therefore contrary to the South East Dorset Structure Plan; 2. that a residential caravan as proposed was considered to be visually damaging to the landscape and was therefore contrary to the South East Dorset Structure Plan; 3. that the proposed development would be contrary to the provisions of the Country Conservation Policy as adopted by the Local Planning Authority for this area, and 4. that, whilst the foul water drainage arrangements were considered to be adequate for the proposed development, the Authority was concerned about the proliferation of such facilities in the immediately surrounding area which might ultimately cause environmental problems and necessitate a marine drainage scheme. An enforcement notice was issued on 29 October 1986 concluding that there had been a breach of planning control due to a material change of use of land from uncultivated and uninhabited land to use for stationing a caravan for the purposes of human habitation. The notice required that the land be reverted to former use as uncultivated and uninhabited land by removing the caravan from the land within a period of six months. An appeal was made to the Secretary of State for the Environment against the refusal of planning permission (under section 36 of the Town and Country Planning Act 1971 as amended by the Local Government and Planning (Amendment) Act 1981) and the enforcement notice (under s. 88(2)(a) and (h) of the Town and Country Planning Act 1971 as amended). An Inspector was appointed and he held a local public inquiry into the appeals on 5 and 6 February 1987. Having visited the site and having heard submissions for the applicant, the Council and third parties, the Inspector concluded that there was a “small but identifiable need for accommodation in the area”. However in respect to the impact of the unauthorised development, the Inspector stated: “The buildings, caravans and rectangular shaped plots are out of keeping with the area and considerably detract from its rural character and appearance ... [T]hey have, in my opinion, a suburban appearance, quite alien in this setting, that unacceptably harms the visual quality of the area and serves to undermine the aims and application of the prevailing restrictive policies.” Placing considerable weight on the serious harm that the sites caused to the area and the strong policy and amenity objections to the site, the Inspector concluded that on balance the use of the sites should not continue. Recognising that the applicant had local links of some longstanding to the extent that she was considered to be “resident in the area”, the Inspector concluded that the question of proliferation and precedent were of particular importance given that, if the present appeal were allowed, future requests would be difficult to refuse. As a result, the Inspector found that the appeal should be dismissed and, recommending that the enforcement notice should be upheld, he proposed extending the period for compliance to 12 months. The Secretary of State accepted the Inspector's recommendations on 30 June 1987 and his conclusion that the appearance of the appeal sites was “out of character with the generally rural nature of the area”. He acknowledged that there was a need to provide accommodation for travelling families in Dorset, but considered that in this case the objections put forward against the proposal outweighed that need. Furthermore, the Secretary of State reiterated the conclusions of the Inspector in relation to the proposal to develop the area for leisure activities, in particular that although this development would substantially alter the area, he did not believe that the proposal would be incompatible with the status of the area as Green Belt, nor would it erode its visual qualities or conflict with its amenity value. The Secretary of State also agreed with the extension of the period for compliance on the grounds that the applicant had nowhere else to go. An offer of sites at Mannings Heath was made to the applicant and other gypsies in or about 1991-1992. It was considered by them to be unacceptable. While the applicant's husband moved to the site after separating from her, she did not believe that he stayed more than a few weeks. Her son took his wife and family to Mannings Heath after she had been scared by council officials but had only stayed there a few weeks. In 1994, complaints were made by the applicant and her neighbours to the Local Authority Ombudsman alleging that the County Council had not fulfilled its statutory obligations to them and that it had not dealt properly with their proposals for resolving the situation. By letter dated May 1994, the Ombudsman noted that the County Council had been attempting to find alternative sites for the complainants for some four years and had offered a number of solutions which the complainants had refused. She concluded: “Having considered the evidence, I am not persuaded that the County Council have failed in their statutory duty to provide adequate accommodation for [the complainants]. I am more inclined to commend the Council for the considerable efforts that they made to try and ensure that [the complainants] were able to remain in Christchurch. ...The offers of accommodation which the Council made... appear to me to be reasonable and consistent with their statutory obligations.” Proceedings were instituted in the Bournemouth County Court by the Council in April 1995 and they resulted in an injunction being made on 9 October 1995 that the applicant remove her caravan from her land by 9 April 1996. The applicant sought to vary this order by extending the time for compliance pending the decision by the European Court of Human Rights in Buckley v United Kingdom (judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1271). This application was opposed by the Council and the Bournemouth County Court dismissed the application on 26 March 1996 on the ground that the injunction was a final order under the Town and County Planning Act 1971 and the judge had no power to alter it. Subsequent appeal to the High Court was available, but the applicant declined to appeal on the advice that such an appeal was bound to fail. In mid-1996, the Council made an application to commit the applicant for contempt of court. On 22 January 1997, the County Court dismissed the order for committal against the applicant and ordered costs in her favour. By letter dated 3 February 1997, the applicant's solicitor informed the European Commission of Human Rights that the application for committal failed on a technicality, namely, that the local authority had failed to ensure that the documentation was adequately and properly served on the applicant. The Council recommenced proceedings in the County Court. An order was made by consent under which the applicant was given six months to vacate the land. The County Council had given notice that they were prepared to re-open a former gypsy site for the applicant and others. The six month period in the order was renewable until the site opened. In February 1998, the site at Mannings Heath was inspected by the applicant and others with representatives of the County Council and District Council. The applicant stated that the warden's office had been destroyed by vandalism and fire; no site warden had been appointed; the site itself was in very poor condition and, when transient gypsy families left, reoccupation of their vacated sites was not being permitted. She alleged that there was a general consensus that she and the other gypsies could not be reasonably expected to move from a rural location to a site which was the equivalent of an inner city sink estate. The applicant's further application for planning permission, along with other Dudmoor gypsies who occupied adjacent sites, concerning altogether 7 residential caravans, 5 touring caravans and associated structures, was refused by the Council during 1997. A public local inquiry concerning their appeals was held before an Inspector on 25 and 26 November 1997. In his report dated 23 November 1998, the Inspector stated: “7.3 It is a matter of agreement that the appeal site and the surrounding area is within the Green Belt and the proposal is contrary to Green Belt policies of the statutory and emerging Developments Plans for the area. 7.4 The area is remote, being accessed over a long partly unmade country lane, but there are views over it from the adjacent St Catherine's Hill which is a popular recreation area. Despite a scatter of buildings the area retains a predominantly rural appearance. 7.5 In my view the cluster of mobile homes the subject of this appeal form an obtrusive feature, harmful to the predominantly rural character and appearance of the area particularly when viewed from St Catherine's Hill and from Dudmoor Farm Road. Despite the long history of the plots, screening has not been effective and in my view the mobile homes are not acceptable in terms of gypsy sites or affordable housing. 7.6. Two earlier appeals in 1987 and 1992 were dismissed and efforts to relocate the appellants and others have been going on since at least the late 1980s. A number of other gypsies have been relocated. 7.7 Despite the appellants' protestations that the alternative sites offered were either unsuitable or unavailable, it seems to me that the evidence of the considerable efforts made to relocate them is much stronger. This was recognised by the Local Authority Ombudsman in 1994 and I find no reason to disagree with his findings. 7.8 The resident gypsies are acknowledged to be hard working families and there is no animosity towards them from local people. However there have been problems arising from the use of the plots as transit sites. 7.9 I am mindful of the disturbance and stress likely to be caused to the appellants and their relatives, particularly the very old, the frail and the young. However, in all the circumstances of this case I conclude that this is not sufficient to justify setting aside the Green Belt and country protection policies ... or outweigh the harm the presence of the mobile homes do to the predominantly rural character and appearance of this area...” In his letter of 25 February 1999, the Secretary of State for the Environment accepted the Inspector's recommendation to refuse the appeals. He considered that considerable efforts had been made to find alternatives for the applicant, including reasonable offers of accommodation at Mannings Heath which were not taken up. He noted that the applicant had stated that she would move to the Mannington Park site (temporarily closed) if that was reopened under suitable conditions and in a suitable state of repair. Offers of sites at Thornicombe and Coldharbour were made to the applicant. She refused them as inappropriate and unacceptable, as they were outside the Christchurch area with which she had long associations and where she had employment and her children had schools. There was no direct public transport and she could not drive. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601). An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act). There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. Again there is a further right of appeal on a point of law to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995). “1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. ... 1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development. 1.5. There are five purposes in Green Belts: – to check the unrestricted sprawl of large built-up areas; – to prevent neighbouring towns from merging into one another; – to assist in safeguarding the countryside from encroachment; – to preserve the setting and special character of historic towns; and – to assist in urban regeneration by encouraging the recycling of derelict and other urban land. ... 2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. ... 3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. ... 3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. 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.”