New Planning Circular Fails to Assist Gypsies and Travellers

The new Planning for Gypsy and Traveller Sites Planning Circular 01/06 (which replaced the old Circular 01/94 in Feb 06), has already been tested by the following two cases...

The two recent, but unrelated, cases involved groups of travellers who were resisting enforcement action by local authorities for breach of planning control.

In both cases, among other arguments, the travellers tried to rely on the guidance contained in Circular 01/06 - Planning for Gypsy and Traveller Caravan Sites.

Both the High Court and the Court of Appeal were of the opinion that the Circular had improved the chances of gypsies and travellers obtaining at least temporary planning permissions for sites to be used as accommodation. However, establishing this will not necessarily be easy as, on the facts of each case, the Circular did not prevent the enforcement action sought by the respective local authorities.

Background (Injunctions)

1. "Where a local planning authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.
2. On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.
3. Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.
4. In this section "the court" means the High Court or the County Court."

The Circulars
Part of the reason for the updated guidance was the perceived failure of Circular 01/94 to deliver adequate sites for gypsies and travellers to stay on.

Paragraph 46 of Circular 01/06 states thatin appropriate circumstances, local planning authorities should give substantial weight to an unmet need for gypsy sites when considering whether to grant temporary planning permission for land to be used in such a way.

Paragraph 70 of Circular 01/06 states that the obligation on public authorities to act compatibly with rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) does not give gypsies and travellers a right to establish sites in contravention of planning control.

Facts of both cases

Firstly, in South Bedfordshire District Council v Price (Price), an area of land, Home Farm, was occupied by mobile homes and caravans, in breach of planning control. Home Farm was owned by Sam Price, one of the defendants.

In October 2000, Mr Price unsuccessfully applied for planning permission for residential use. In July 2001, South Bedfordshire District Council (SBDC) served an enforcement notice. Mr Price appealed against both the refusal of permission and the enforcement notice, which led to a public enquiry in 2002. The Secretary of State decided the appeal by letter in July 2002, rejecting the appeal, but given 18 months for compliance with the enforcement notice.

The Prices remained in occupation after that period ended and, later in 2004, SBDC sought an injunction under section 187B. The injunction was granted on 4 November 2004 and provided that the defendants were to:

• Cease residential use of Home Farm by 2 December 2004.
• Remove all caravans, mobile homes, carriages, fences, sheds and other structures (bar one) by 2 December 2004.
• Restore Home Farm by 30 December 2004.

The defendants failed to comply with any aspect of the injunction. In July 2005, the SBDC issued proceedings for the defendants' committal. The defendants responded by applying for the original injunction to be discharged or varied.

In September 2005, the court refused to suspend or vary the injunction and made the committal order, suspended for two months. The court did not agree to suspend the committal order until the outcome of that appeal was known.

The defendants appealed against the suspended committal order and sought permission to appeal against the refusal to suspend the injunction. Among the various issues raised was that the guidance in Circular 01/06 substantially improved the defendants' chances of obtaining a temporary planning permission.

In the second case, South Cambridgeshire District Council v Flynn (Flynn), many of the facts were similar to Price. An area of land, Pine View, was owned by the defendants. Pine View was used as a caravan site, in breach of planning control.

The local authority, South Cambridgeshire District Council (SCDC) served three enforcement notices in respect of various parts of Pine View and all three were upheld on appeal. Many of the defendants (there were over 30) applied for planning permission to use the land as a caravan site, but permission was refused by a planning inspector, after an enquiry. The inspector also dismissed the appeal against the third enforcement notice.

The First Secretary of State upheld the inspector's recommendations and refused an application for an extension of time for complying with the third enforcement notice.

After the deadline for complying with the enforcement notice passed, SCDC sought an injunction under section 187B, requiring compliance with the enforcement notices.

The main arguments against the grant of an injunction were that injunctive relief would not be proportional or correct in all the circumstances (including rights under the Convention) and that Circular 01/06 improved the defendants' chances of obtaining at least temporary planning permission.

The judge delayed handing down his judgment, in order to consider the effects of the Court of Appeal's decision in Price.

Decisions

In Price, the trial judge had concluded that there was only a remote chance of the latest planning application being successful. The Court of Appeal took the view that strong justification would be needed for suspending an injunction after the defendants ignored the enforcement notice for four years and the injunction for ten months.

While a large number of objections and issues were raised on the facts, the Court of Appeal thought that the terms of Circular 01/06 provided the main argument on the appeal.

The court accepted that Circular 01/06 had improved the defendants' chances on the planning appeal.

In the circumstances, it would only be right to suspend the committal order pending the result of the planning appeal if it could be shown that there was a substantial likelihood of securing at least a temporary permission at the planning appeal. However, while the defendants' chances had improved, they were still not strong.

The appeal against the committal order was dismissed and the application for permission to appeal against the refusal to suspend the injunction was refused. The court invited submissions on whether the part of the committal order relating to the reinstatement of the land should be suspended.

The Flynn Case
The argument that granting the injunction was not proportional was rejected. Various factors had been considered by the planning inspector, who had concluded that the case against granting planning permission was "very strong". The personal considerations of the defendants did not outweigh the case for stopping the unauthorised use of Pine View. The defendants' failure to comply with the enforcement notices did not help their case.

The court agreed with the defendants' submission that Circular 01/06 improved their chances of obtaining some form of planning permission. However, in view of the strong reasons against the grant of even temporary planning permission, as set out by the planning inspector and upheld by the First Secretary of State, the guidance in Circular 01/06 did not help the defendants. The section 187B relief sought by SCDC was granted.

Comment

While both sets of defendants were unsuccessful, these two cases indicate that Circular 01/06 has had an effect on cases involving planning applications made by gypsies and travellers, including planning enforcement proceedings.

Circular 01/06 may well assist travellers in matters where the reasons for refusing planning permission are not as strong as in Price and Flynn. However, it remains to be seen to what extent gypsies and travellers will succeed in any arguments based on Circular 01/06.