Applications for Planning Permissions by Gypsies and Travellers II 0 Comments

Applications for Planning Permissions by Gypsies and Travellers II

Proposition: the procedure generally adopted by local planning authorities (LPAs) in dealing with planning applications made by gypsies and travellers is problematic in terms both of enforceability and precision.

This post deals with aspects of the planning treatment of applications for planning permission by gypsies and travellers not covered in my previous post “Applications for Planning Permissions by Gypsies and Travellers” (which was subsequently published in expanded form in the May 2014 issue of the Journal of Planning and Environment Law). As with my earlier post, I am concerned here only with applications by landowners for planning permission: not with other duties of LPAs in relation to the provision of gypsy/traveller accommodation (though there may be some overlap).

Journal of Planning and Environment Law - May 2014My previous post refers to the guidance note issued by the Department for Communities and Local Government (the Guidance Note) in March 2012 titled “Planning for Traveller Sites” and to the definition of “gypsies and travellers” in the Glossary to that document in Annex 1. There is no need for me to repeat the definition here.

I also noted in my earlier post that the learned authors of the leading text on the subject, Gypsy & Traveller Law (2nd Edition) (Legal Action Group) recognise (at paragraph 4.65 on page 109) that in the majority of cases concerning gypsies or travellers, the proposed use of a piece of land as a gypsy caravan site will conflict with some policies contained in the development plan. The authors continued; “in such circumstances, Gypsies and Travellers would only be granted planning permission if they can show that there are material considerations that outweigh the development plan policy objections and justify the grant of planning permission”. With that background, I can give my reasons for making the proposition at the beginning of this post.

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Enforceability

There are two situations I want to deal with here. The first is where the application is made by or on behalf of applicants who qualify for gypsy or traveller status within the Guidance note (having due regard to the case law referred to in my earlier post) – I will refer to such applications as “direct applications”. The second situation is where the applicant for planning permission does not himself enjoy gypsy or traveller status but seeks permission to develop his land as a gypsy or traveller site (I will refer to these as “speculative applications”). I will assume (see above) that in both cases the development applied for is contrary to one or more policies of the development plan and that planning permission would not be granted were it not for material considerations specific to the applicant’s, or, in the case of speculative applications, the (unspecified) future occupier’s, gypsy or traveller status.

Direct Applications

In the case of direct applications, the applicant for planning permission may well be entitled to gypsy or traveller status (although as I pointed out in my earlier post this is not always investigated carefully enough), but the enforcement problem lies in the general rule that the benefit of a planning permission will run with the land (Town & Country Planning Act 1990 s.75(1)). How can an LPA ensure that future owners (or, indeed, users) of the site are entitled to gypsy or traveller status? The majority of LPAs do not have the resources (or indeed the inclination) to check at regular intervals that the then current owner or user of the site remains within the government definition.

Thus if, following the grant of planning permission, the land in question is sold or let to someone who does not have gypsy or traveller status, or to whom the material considerations outweighing the development plan policies on the grant of the permission do not apply, there is an immediate problem; why should the subsequent owner or occupier have the benefit of the planning permission?

The short answer I think is that there is only one way in which the position can be secured indefinitely, and that is for the LPA to grant planning consent subject to a condition limiting the benefit to the applicant personally. There is no doubt that an LPA has the power to grant a personal permission; the Town & Country Planning Act 1990, s.70(1) empowers an LPA to grant permission “either conditionally or subject to such conditions as they think fit”. Also section 75(1), while stating that normally permissions to develop land enure for the benefit of the land and all persons being interested in it, expressly states this applies “except in so far as the permission otherwise provides”. So it follows that a personal condition can be validly imposed. As the Encyclopaedia of Planning Law and Practice puts it “The general rule may be expressly excluded”.

Encyclopedia-of-Planning-Law-and-PracticeThe Government’s policy on personal conditions is that while it is seldom desirable to limit permission to the applicant or any other named individual, there may be occasions when there are strong compassionate or other personal grounds to do so; see circular 11/95.  The Use of Conditions in Planning permissions, para 93. This is in the situation where permission would not be normally allowed and so the condition is intended to ensure that the permission does not run with the land and is in effect a temporary permission.

This approach can be seen as being endorsed by Lord Scarman in Westminster City Council v Great Portland Estates [1985] A.C. 661, a case where consent for office use was granted contrary to development plan policies. Lord Scarman said this:-

“Personal circumstances of an occupier, personal hardship, and the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it. It follows that, though the existence of such cases may be mentioned in a plan, this will only be necessary where it is prudent to emphasise that, notwithstanding the general policy, exceptions cannot be wholly excluded from consideration in the administration of planning control.”

I would suggest that in the case envisaged here the LPA would have ample grounds for personalising a direct planning consent granted contrary to provisions of the development plan on the basis of material considerations arising from the gypsy or traveller status of the applicant. Successors in title can always apply again, giving the LPA the opportunity to examine the new applicant’s status and take proper account of all material planning considerations then applying.

Personal permissions are in fact granted quite often. Thus in a Ministerial decision ref App/5034/A/81/02199 reported in the Journal of Planning and Environment Law [1982 JPL 543] a condition restricting the occupation of the office building known as Queensland House in The Strand, London to occupation by the Government of Queensland, to enable the Greater London Council to have control over the future of the building if the Governor of Queensland gave it up, was successfully imposed (although in the case referred to was discharged by the Secretary of State some 17 years after its imposition – a personal condition can always be discharged like any other condition if it is or becomes inappropriate or unnecessary).

Queensland House, The StrandIn another case referred to in the same issue of this Journal [1982 JPL 464], permission was granted for a storage use solely for the benefit of the then named occupier, to prevent an increase in traffic which might be generated by the establishment of a haulage type depot; though again the condition was discharged as the named occupier gave up the business and the Secretary of State was of the view that the restriction to a storage use on its own was sufficient to prevent an increase in traffic.

In the case of a planning permission of the kind under discussion here it would be my submission that there would never be any ground on which it should be discharged: planning permissions usually remain in force indefinitely and the danger of a change of owner or occupier is not going to go away.

Speculative Applications

I am not sure how common this practice (the grant of permission on a speculative application) is, but it certainly happens. In a case I have come across, the LPA granted consent but imposed a condition to the effect that the caravans put on the site pursuant to the permission should be for the use only of persons who do enjoy gypsy or traveller status. The enforcement problems then loom even larger. In the first place (and not unnaturally) LPAs tend to be less diligent in enforcing conditions than in preventing unauthorised development. Secondly, unlike the case of the initial grant of planning permission, the LPA is under no obligation whatsoever to consult with anyone in approving details under, or discharging, a condition. In addition to that, any condition needs to comply with the government’s policy on the use of conditions in planning permissions as set out in the Planning Practice Guidance issued under the NPPF Policy; “the six conditions”. Under “How does the Local Planning Authority ensure the six tests in paragraph 206 of the National Policy Framework have been met?” the Guidance lists the “TESTS” alongside the “Key questions” and in order to answer the question just posed these need to be considered individually.

TEST KEY QUESTIONS
Necessary Will it be appropriate to refuse planning permission without the requirements imposed by the condition?  The answer must be yes.
Relevant to Planning   Does the condition relate to planning objectives and is it within the scope of the permission to which it is to be attached.  Again, I think, yes.
Relevant to the
development to be permitted.
Does the condition fairly and reasonably relate to the development to be permitted”.  Another yes.
Enforceable Would it be practicably possible to enforce the condition?  This is where doubts set in. Given, as mentioned above, lack of resource and inclination I would suggest that in practical (an important word) terms the condition would not be enforceable.
Precise Is the condition written in a way that makes it clear to the applicant and others what must be done to comply with it?  In the case of the condition limiting use to those of gypsy and traveller status, I think there must be doubts; the nature of the status is the subject of much UK and European case law and I think the tests themselves are hardly precise.
Reasonable in all other respects Is the condition reasonable?  I quote from the second bullet point in this column in the Guidance; “Unreasonable conditions cannot be used to make development that is unacceptable in planning terms acceptable”. This is somewhat circular, but if it means that a condition which fails any of the other tests above is by definition unreasonable, it is submitted that a condition of the kind under consideration here must fail this test as well.

Precision

Twin Unit CaravanWhat I mean by “precision” is the description of the permitted development contained in the LPA’s decision notice. I am looking as I write at an example of a planning permission granted on a speculative application; the approved proposal is described as “Siting of 3 static gypsy caravans”. There is a condition requiring the approval of details of the location of the caravans but there is no restriction in terms of the size of the individual units; the caravans permitted are “as defined in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968”.

That is correct; the definition of “caravan” is provided in s.29(1) of the 1960 Act as:-

“…any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted …”

That definition was modified by s.13(1) of the 1968 Act which deals with twin-unit caravans. s.13(1) states:-

“A structure designed or adapted for human habitation which:-

(a)  is composed of not more than two sections separately constructed and designed to be assembled on a site by means of bolts, clamps or other devices; and

(b)  is, when assembled, physically capable of being moved by road from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer),

shall not be treated as not being (or as not having been) a caravan within the meaning of Part I of the [1960 Act] by reason only that it cannot lawfully be so moved on a highway when assembled.”

S.13(2) of the 1968 Act (as amended) prescribes maximum dimensions for “twin unit caravans”:-

(a)        length (exclusive of any drawbar): 65.616 feet (20 metres);

(b)        width: 23.309 feet (6.8 metres);

(c)        overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 10.006 feet (3.05 metres).

Twin Unit being transportedThe key element is mobility; the caravan must be capable of being moved when assembled from one place to another. It cannot be fixed to the ground. Permanent works, such as an extension or large porch, which fix the caravan to the ground could mean that a caravan no longer comes within the legal definition of the caravan and could as a consequence be treated as a building. This could have serious planning, legal and contract implications for site owners and residents alike, such as residents of park homes not having protection under the Mobile Home Act 1983 – but that is outside the scope of this blog post.

Going back to the speculative permission to which I referred, it seems to me that it (and many others I have seen like it) automatically permit the construction of the specified number of caravan units up to (in each case) the maximum dimensions prescribed by s.13(1). A unit which conforms to the maximum dimensions is a very large unit indeed, and in my experience, once installed on site, is highly unlikely to be moved again – a twin-unit static caravan has much more in common with a house (and an internal floor area about the same as an average three bedroom semi) than the average person’s understanding of a “caravan”. Many sites which LPAs consider suitable for gypsy and traveller use are isolated with difficult access – they will not always be fronting a public highway. The site could, for example, be on a track or one way road or have other characteristics which would make it extremely difficult to swing a 20m x 7m (almost) static unit into position.

Access and other geographical site features should be taken into account by LPAs who should if the site will not accommodate units of the defined maximum size impose a condition limiting the size by reference to dimensions which will fit the site’s requirements. This can be done in the description of the permitted development or in a condition requiring the approval not only of location but also of dimensions.

Settled Twin UnitThere is also the question of design; twin-unit static caravans come in a huge variety of designs as well as sizes. In considering applications for permission for permanent buildings an LPA will look closely at the design details to ensure compatibility with site surroundings as well as quality and sustainability. The author has never seen a planning consent granted for, say, “Construction of 3 office buildings” or “3 shops”, without reference to approved design drawings or at least, with outline permissions, at any rate without carefully drawn conditions reserving all design and other details for subsequent approval.

Conclusions:-

1.  In order to ensure continued compliance with government guidance on planning applications by gypsies and travellers which is contrary to one or more of the development plan policies, an LPA should impose a condition making the consent personal to the applicant; and

2.  LPAs should not grant consent for gypsy and traveller use to persons who are not gypsies or travellers, notwithstanding the imposition of a condition of the kind referred to above, as such a condition is likely to fail the NPPF tests as to enforceability, precision and reasonability.

3.  In considering applications for consent for the placing of mobile (particularly static) units, LPAs should have regard to any restrictions on access or other geographical features of the application site which would make it unsuitable for the placement of a unit or units of the maximum size permitted by the definition of “caravan”, and should consider restricting the size to what is reasonable in the circumstances either in terms of the description of the development (preferable), or at least by condition, and refer either to approved drawings or reserve matters of design and other detail for later approval.

N.B.  A modified version of this post has been accepted for publication in the September issue of The Journal of Planning and Environment Law.

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