Department for Communities and Local Government Christine Symes
Planning Casework, 3rd Floor, Fry Building 2 Marsham Street London SW1P 4DF
Tel: 0303 44 41634
Email: [email protected]
Ms Joanna Gregson
South West Law
2
ndFloor, 48-54 West Street
Bristol
BS2 0BL4
Our Ref:
APP/W3005/A/13/2208844
Your Ref: C555/2
20 October 2014
Dear Madam,
TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 78
APPEAL BY MR MICHAEL CASH
TRAVELLER’S REST, FELLEY MILL LANE (SOUTH), UNDERWOOD,
NOTTINGHAMSHIRE NG16 5FQ
APPLICATION REF: V/2013/0292
1. I am directed by the Secretary of State to say that consideration has been given
to the report of the Inspector, Kevin Nield, BSc(Econ) DipTP, CDipAF, MRTPI,
who held a Hearing which opened on 8
thApril 2014 into your client's appeal as
follows:
APP/ W3005/A/13/2208844
under s78 of the Town and Country Planning Act
1990 against the refusal by Ashfield District Council (“the Council”) to grant
planning permission for use as a private residential caravan site for an extended
Traveller family to include 3 pitches (each comprising mobile home, touring
caravan and amenity block) and the laying of hardstanding, erection of
boundary fencing and the construction of a new access at Traveller’s Rest,
Felley Mill Lane (South), Underwood, Nottinghamshire.
2. On the 27
thJune 2014 the appeal was recovered for the Secretary of State's
determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to,
the Town and Country Planning Act 1990, because the appeal involves a
proposal for significant development in the Green Belt (GB).
Inspector’s recommendation and summary of the decision
3. The Inspector recommended that the appeal should be dismissed. For the
reasons given below, the Secretary of State agrees with the Inspector’s
conclusions and recommendation and dismisses the appeal. A copy of the
2
Inspector’s report (IR) is enclosed. All references to paragraph numbers, unless
otherwise stated, are to that report.
Procedural matters
4. The Secretary of State notes that the Inspector has taken account of the
planning guidance published in March 2014 in reaching his recommendations
(IR9).
5. On the 13 August 2014, following the High Court Judgment in the case of
Redhill Aerodrome Ltd vs. SSCLG and others [2014] EWHC 2476 (Admin),the
Secretary of State wrote to all parties to seek their views on the implications, if
any, of the Judgment on their case. The Council responded saying that it did
not consider that if the High Court Judgment had been made before the
application was submitted this would have altered the Council’s determination.
The agent for the appellant acknowledged the High Court Judgment but made
no comment on it in relation to this case.
6. On 9
thOctober 2014, the Court of Appeal set aside the Judgment and Order of
Patterson J dated 18 July 2014. As such, and given the parties responses on
this matter, the Secretary of State does not consider it necessary to revert to
the parties prior to reaching this decision.
Policy considerations
7. In deciding this appeal, the Secretary of State has had regard to section 38(6) of
the Planning and Compulsory Purchase Act 2004 which requires that proposals
be determined in accordance with the development plan unless material
considerations indicate otherwise.
8. In this case, the development plan comprises the saved policies of the Ashfield
Local Plan (LP) Review 2002. The Council is preparing a new LP but has
currently withdrawn it from examination, and like the Inspector (IR21), the
Secretary of State gives limited weight to it at this stage. The Secretary of State
considers that the development plan policies most relevant to the appeal are
those set out by the Inspector at IR20.
9. Other material considerations which the Secretary of State has taken into
account include the National Planning Policy Framework (the Framework);
Planning Policy for Traveller Sites (PPTS); the Written Ministerial Statements of
1 July 2013 and 17 January 2014 and planning guidance issued on 6
thMarch
2014. The Secretary of State has also had regard to the fact that on 14
September 2014 the Government published a consultation document:
“Proposed changes to national planning policy and Planning Policy for Traveller
Sites”. However, given that the proposals are subject to consultation, he has
given little weight to them in the determination of this appeal.
10. The Secretary of State accepted in the previous appeals on this site in 2012 that
the occupiers of the site met the definition of Gypsies and Travellers. This has
not been contested in this appeal and he considers that the site occupiers are
persons who share a protected characteristic for the purposes of the Equality
Act 2010 and come within the definition in the PPTS (IR 25).
3
Planning history
8. The Secretary of State notes the planning history as set out in IR3-7 and
description of the site in IR 10-11.
Inspector’s Conclusions
Main issues
9. The Secretary of State considers that the main issues are those identified by the
Inspector at IR93.
Green Belt
10. The Secretary of State agrees with the Inspector and the principal parties that
the development constitutes inappropriate development in the Green Belt (IR93)
conflicting with LP Policy EV1 and the aims and purposes of protecting GB land
set out in the Framework at paragraphs 79-80 (IR94). He also agrees that the
appeal scheme reduces the openness of the GB and leads to encroachment
into the countryside beyond a well-defined and defensible development limit, as
so defined in the LP and has caused significant harm to the character of the
locality (IR94).
11. Additionally, the Secretary of State agrees with the Inspector that there is some
harm to the visual amenities of the GB, which would not be fully mitigated by
additional planting and the imposition of conditions (IR96).
Mature Landscape Area (MLA)
12. The Secretary of State agrees with the views of the principal parties, the
Inspector and the previous Inspector that the site is within a landscape
character area indicated as being of moderate condition and strength,
concluding that the overall landscape strategy for the locality is one of
enhancement. He further agrees with the Inspector that the appeal scheme
would not lead to landscape enhancement and that the incursion of
development onto formerly undeveloped farmland would have a limited adverse
effect on the character and quality of the landscape and would weigh against
the scheme (IR99-100).
Nature Conservation
13. Like the Inspector, the Secretary of State is satisfied that the development is
unlikely to cause any material harm to nature conservation interest (IR102).
Living Conditions of Nearby Residents
14. The Secretary of State agrees with the Inspector’s findings at IR103-104 that
conditions could be imposed to control the use of generators and prevent any
commercial or business activity. Similarly, he agrees with the Inspector that
noise from residential use is unlikely to cause harm to the living conditions of
nearby residents and, although the outlook from first floor windows of those
4
living directly opposite would be affected to a degree, the impact would be
limited with the retention of the hedge along the Alfreton Road frontage and the
separation distance involved (IR104).
Other Considerations
a)
General need for Gypsy and Traveller sites
15. The Secretary of State notes the appellant’s concerns regarding the
methodology used to determine the need for pitches in the GTAA (IR106) and
agrees with the Inspector that this will be a matter for consideration as part of
the emerging LP.
16. The Secretary of State acknowledges that the expected DPD allocating
Traveller sites is some way from completion which leaves a policy gap until that
time and agrees with the Inspector that there is an outstanding need to provide
an up to date five year supply of deliverable pitches against the locally set
targets (IR109). He further agrees that the general need situation and the lack
of a five year supply is a significant material consideration, having regard to the
policy guidance in the PPTS.
b)
Personal accommodation needs and circumstances
17. The Secretary of State acknowledges the appellant’s longstanding connection
with the Nottinghamshire area and agrees with the Inspector that there is no
evidence of available sites in the District to accommodate the family group
(IR111). However, he also notes the potential availability of available pitches at
Newark. While he agrees that as the majority of the District is designated GB
and finding a suitable and acceptable site is likely to be difficult, he agrees with
the Inspector that there may be some scope to find an alternative in the 40% of
the District that is not GB, and there is also the possibility of a pitch on the Park
Lane, Kirby-in-Ashfield site when that is developed (IR112).
18. Whilst the Secretary of State acknowledges the affordability concerns of the
appellants, he like the Inspector, agrees that there remains some prospect that
another more suitable location may be found either within the District or in an
adjoining local authority area (IR113).
19. The Secretary of State has carefully considered the personal needs and
circumstances of the site occupants as set out in IR110-114 and has considered
the best interests of the children as a primary consideration. He gives some
weight in favour of the appeal to the stability of home life which continued
occupation of the appeal site would provide. However, he agrees with the
Inspector that while the appeal site offers the opportunity for a settled base, and
enabled the occupants to register with a doctor and facilitates the Connors’
children attending school and nursery, these are general rather than special
education and health needs which could be met from alternative bases. The
children are at an early stage of their education and could adjust to another
school or nursery. He further agrees with the Inspector that there are no
pressing health needs which provide a basis for remaining on the appeal site
(IR114).
5
c)
Human rights
20. The Secretary of State agrees with the Inspector that the human rights of the
occupants under Article 8 and Article 1 of the 1
stProtocol of the ECHR need to
be considered (IR115). In particular, the best interests of the children are a
primary consideration. In terms of the Appellants’ rights under Article 8 of the
European Convention on Human Rights, the Secretary of State considers that
these rights are qualified and that it is his role as planning decision-taker to
ensure that any interference with these rights is in accordance with the law and
is necessary in a democratic society, applying the principle of proportionality.
The balance of considerations
21. The Secretary of Stage agrees with the Inspector in IR116-121 on the harm he
identifies as caused by the appeal development and the weight he apportions to
each of the identified harms.
22. The Secretary of State agrees with the Inspector’s findings at IR122 and
concludes that the very special circumstances necessary to justify a grant of
planning permission do not exist.
23. Turning to whether a temporary permission should be granted, the Secretary of
State has had regard to the Inspector’s remarks at IR123. However, he
observes that the application to which this appeal relates was dated 9 May
2013, so not within the period identified at paragraph 28 of the PPTS.
Nevertheless in the circumstances of this case, bearing in mind the unmet need
for sites in Ashfield, the lack of an up-to-date five year supply of deliverable
sites is regarded as a significant material consideration.
24. The Secretary of State agrees with the Inspector in IR125 on the harm he
identifies is caused by the appeal development and the weight he apportions to
each of the identified harms. He further agrees that the imposition of conditions
would not render the development acceptable even for a temporary period.
25. Like the Inspector, the Secretary of State recognises that dismissing this appeal
would lead to interference with the human rights of the site occupants.
However, the harm caused to the GB would be substantial and dismissal of the
appeal is a proportionate and necessary measure which would not amount to a
violation of the human rights of the Appellant’s family group (IR126).
26. In making his decision, the Secretary of State has had due regard to the
requirements of the Public Sector Equality Duty, in particular the need to
eliminate discrimination, advance equality of opportunity and foster good
relations between those with protected characteristics and others. In this regard
and in coming to his decision he has considered the following impacts on the
protected group: the need for sites, the lack of an alternative site that is suitable,
affordable and available, t`he failure of policy and human rights considerations.
Overall conclusion
27. The Secretary of State agrees with the Inspector’s overall conclusions and
agrees that the proposal is inappropriate development in the Green Belt and he
attributes substantial weight to this harm. He considers that the totality of harm
6
arising from the development would not be clearly outweighed by other
considerations, and he considers that the very special circumstances necessary
for the granting of a either a permanent or a temporary planning permission do
not exist
Formal decision
28. Accordingly, for the reasons given above, the Secretary of State agrees with the
Inspector’s recommendation. He hereby dismisses the appeal, and refuses
planning permission for APP/W3005/A/13/2208844.
Conditions
29. The Secretary of State has considered the proposed schedule of conditions set
out by the Inspector at the end of his report. He is satisfied that these
conditions are necessary and relevant to the proposed development and meet
the policy tests of the planning guidance – Use of Conditions and paragraph
206 of the Framework. However, he does not consider that they would
overcome his reasons for dismissing the appeal.
Right to challenge the decision
30. A separate note is attached setting out the circumstances in which the validity of
the Secretary of State’s decision may be challenged.
31. A copy of this letter has been sent to Ashfield District Council. A notification
letter has been sent to all other parties who asked to be informed of the
decision.
Yours faithfully
Christine Symes
Hearing held on 8 April 2014
Traveller's Rest, Felley Mill Lane (South), Underwood, Nottingham, Nottinghamshire, NG16 5FQ File Ref: APP/W3005/A/13/2208844
Report to the Secretary of State for
Communities and Local Government
by K Nield BSc(Econ) DipTP CDipAF MRTPI
an Inspector appointed by the Secretary of State for Communities and Local Government Date 27 June 2014
TOWN AND COUNTRY PLANNING ACT 1990
ASHFIELD DISTRICT COUNCIL
APPEAL BY MR MICHAEL CASH
File Ref: APP/W3005/A/13/2208844
Traveller’s Rest, Felley Mill Lane (South), Underwood, Nottingham, Nottinghamshire, NG16 5FQ
• The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.
• The appeal is made by Mr Michael Cash against the decision of Ashfield District Council. • The application Ref V/2013/0292, dated 9 May 2013, was refused by notice dated 25 July
2013.
• The development proposed is described as a change of use to use as a private residential caravan site for an extended Traveller family to include 3 pitches (each comprising mobile home, touring caravan and amenity block) and the laying of hardstanding, erection of boundary fencing and the construction of a new access.
Summary of Recommendation: The appeal be dismissed. Procedural Matters
1. This appeal has been recovered for determination by the Secretary of State in exercise of his powers under s79 and paragraph 3 of Schedule 6 of the 1990 Act as it involves a proposal for significant development in the Green Belt (GB). 2. The application was submitted on the basis that it was for a permanent
permission and was determined on that basis by the Council. At the Hearing the Appellant indicated that a temporary planning permission was now being sought. I have taken that matter into account in reaching my
recommendations.
3. This appeal follows recent appeals1 by the same Appellant in respect of actual
and proposed development at the appeal site. Those appeals were, firstly, against an enforcement notice issued on 17 January 2012, requiring the removal of 4 caravans for residential purposes, hard standings etc associated with the unauthorised use of the site as a Gypsy and Traveller site and
reinstatement of the site (“Appeal A”) and, secondly, in respect of a planning application for the change of use of the land to a residential caravan site for use by 3 Gypsy families, each of 2 caravans and amenity block, including
construction of hardstanding and new access (“Appeal B”).
4. Those appeals were recovered for the Secretary of State’s determination2,
because they involved proposals for significant development in the GB. The appointed Inspector held a Hearing and associated site visit on 25 July 2012. The Inspector concluded in respect of Appeal A (ground (a)) and Appeal B that substantial harm, particularly to the GB, would result from the proposed
development and would not be clearly outweighed by other considerations and that very special circumstances did not exist to justify the inappropriate
development in the GB on either a permanent or temporary basis.
Consequently, he concluded that the ground (a) appeal on Appeal A and Appeal B should not succeed.
5. In respect of a ground (g) appeal for Appeal B the Inspector recommended that a period of 12 months to search for and secure an alternative site and a further
1 Appeals Refs: APP/W3005/C/12/2170983 and APP/W3005/A/12/2170829 2 In pursuance of s79 and paragraph 3 of Schedule 6 of the 1990 Act
month to reinstate the land to its previous level and condition would be reasonable. The Secretary of State agreed with the Inspector’s
recommendations and decided to uphold the enforcement notice (in modified form) and to refuse planning permission.
6. As the present appeal deals with the same proposed development at the appeal site as was considered in Appeal B previously I shall treat the Inspector’s
recommendations and the Secretary of State’s previous decisions as a
significant material consideration in reaching my conclusions. To a large extent the parties have not disagreed with the recommendations of the previous
Inspector or the decisions of the Secretary of State on the main issues raised by the scheme and the evidence provided on many of the main issues from both parties is very limited. Nevertheless, there are some material changes, particularly in respect of policy and considerations advanced by the Appellant regarding the supply of alternative sites and the justification for a temporary consent, which I deal with in my report.
7. Although the site is occupied by the Appellant and a number of co-occupants it is unauthorised. Notwithstanding that the current layout differs from that
proposed in the appeal scheme. I shall take that into account in my assessment of the issues.
8. The appeal was submitted outside the (shortened) 28-day time period to appeal where there is an extant enforcement notice concerning essentially the same development that has been refused planning permission. The Appellant’s agent acknowledged that error. However, the note headed “Appeals to the Planning
Inspectorate” that was attached to the Council’s Decision Notice of Refusal of
the planning application issued on 25 July 2013 did not refer to the shortened time period to appeal in the above circumstances. The note merely stated that an appeal against the refusal should be made within 6 months of the date of the decision. The Planning Inspectorate (PINS) considered that the Council’s failure to update the note contributed to the error and it was therefore judged by PINS that the error was not entirely of the Appellant’s own making. On that basis the Secretary of State exercised his discretion and accepted the late appeal.
9. Since the written evidence of the principal parties was submitted the Government has issued Planning Practice Guidance (PPG). The parties
confirmed at the Hearing that they were aware of PPG and that its content did not change their respective cases. There is no injustice to the parties if I take PPG into account in reaching my recommendations.
The Site, Surroundings and Background
10. The site is located at the junction of Alfreton Road (A608) and Felley Mill Lane (South) and has an area of approximately 0.17 hectares. It is located within the designated GB and a Mature Landscape Area (MLA), a local landscape designation and is outside the defined settlement of Underwood which is
primarily located on the opposite (western) side of Alfreton Road. Access to the site is at its eastern end from Felley Mill Lane (South) where there is a pair of solid metal gates. I noted at my visit that the site, which was originally part of a field in agricultural use, is predominantly covered with loose hardcore material and there is timber fencing erected around the perimeter of the site to a height of about 2 metres (m).
11. The site is occupied by the Appellant and co-occupants who are living in
caravans. There is also a small wooden structure containing a generator at the site. The site lacks mains drainage, a water supply and mains electricity. The Appellant commented at the Hearing that he was unable to secure mains electricity without a planning consent for the proposed use.
12. Although the application is for a permanent consent the Appellant has provided details of the personal circumstances of his family as part of the justification for the proposed development. Consequently, I will consider the appeal on the basis that the scheme is required for the particular persons identified. The personal circumstances advanced are also relevant to a consideration of a possible temporary planning consent. In those circumstances I will take account of them.
Planning Policy
13. The parties agreed at the Hearing that many of the planning policy considerations relevant to this appeal are consistent with the description provided in respect of the previous appeals. Nevertheless for completeness I will review the policy background and identify material changes that have taken place since the previous appeals.
14. National policy of material relevance to this appeal is contained in the National Planning Policy Framework (the Framework) and the Planning Policy for
Traveller Sites (PPTS). Section 9 (Protecting Green Belt land) of the Framework provides guidance on development in the GB and states that the fundamental aim of GB policy is to prevent urban sprawl by keeping land permanently open (para 79). The purposes of the GB are stated at paragraph 80 of the
Framework. Amongst other matters, the GB is to check the unrestricted sprawl of large built-up areas and to assist in safeguarding the countryside from
encroachment. Section 11 of the Framework (Conserving and enhancing the
natural environment) includes policy in respect of local landscape designations.
15. PPTS indicates3 that the government’s overarching aim is to ensure fair and
equal treatment for Travellers, in a way that facilitates the traditional and nomadic way of life while respecting the interests of the settled community. Paragraph 4 sets out (in a series of points) the Government’s aims in that regard. Amongst other matters, it is suggested that Local Planning Authorities should make their own assessment of the need for sites and identify and plan for sites in appropriate locations over a reasonable timescale. Such actions, it indicates, would increase the provision of lawful sites, address any
under-provision, maintain an adequate supply, reduce unauthorised encampments and make enforcement more effective. It is intended that such actions would also reduce tensions between the settled and Traveller communities and provide Travellers with better access to education, health, welfare and employment infrastructure. Other aims are the need to protect the GB from inappropriate development and to have due regard to the protection of the local environment. 16. PPTS indicates (para 25) that if a Local Planning Authority cannot demonstrate
an up-to-date five year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering
applications for the grant of temporary planning permission. However, this policy provision is limited to applications for temporary planning permission made 12 months after PPTS came into force (para 28). I shall refer to this aspect of PPTS in relation to the Appellant’s case.
17. Since the earlier appeal decision two Written Ministerial Statements (WMSs) have been delivered which, amongst other matters, provide additional guidance in respect of the determination of proposals for development in the GB including Traveller sites. I can attach substantial weight to the WMSs.
18. In the WMS issued on 1 July 2013 the Secretary of State made it clear that, although each case will depend on its facts, he considers that the single issue of unmet need, whether for Traveller sites or for conventional housing, is unlikely to outweigh harm to the GB and other harm to constitute the “very special circumstances” justifying inappropriate development in the GB. In addition the WMS stated that the Secretary of State wishes to give particular scrutiny to Traveller site appeals in the GB, so that he can consider the extent to which PPTS is meeting the Government’s clear policy intentions. A further WMS delivered on 17 January 2014 re-emphasised the above policy position and also stated that the Government’s planning policy is clear that both temporary and permanent Traveller sites are inappropriate development in the GB and that planning decisions should protect GB land from such inappropriate development. 19. The East Midlands Regional Plan (EMRP), which was in force at the time of the
previous appeals, has now been revoked and, as such, no weight is attached to its contents.
20. In terms of the development plan, Policy ST14 of the Ashfield Local Plan (LP)
Review 2002 sets down criteria to be applied to all development including those relating to the environment. Policy EV1 addresses development in the GB and the tests are generally consistent with those applying in national policy. Policy EV4 identifies MLAs which are shown on the Proposals Map of the LP. The appeal site falls within the Underwood (Rc) MLA. The policy requires development to not adversely affect the character and quality of the MLA. Policies EV5 and EV6 concern Sites of Special Scientific Interest (SSSI) and Sites of Importance for Nature Conservation (SINC) respectively which seek the protection of their nature conservation value. These are shown on the Proposals Map and the Friezeland Grassland SSSI/SINC is shown located about 150m north-east of the appeal site. LP Policy HG9 concerns Gypsy and Traveller sites outside the GB and is not applicable to this scheme.
21. The Council explained at the Hearing that they are preparing a new LP and a draft version has been published for consultation but it still has some distance to travel before adoption. Limited weight can be attached to it at this stage. The need for Gypsy and Traveller sites was not an issue examined in detail in the draft LP and the future allocation of sites would be made against a criteria based policy and (most likely) published in a separate Development Plan Document (DPD).
22. A Gypsy and Traveller Accommodation Assessment (GTAA) Review for Ashfield DC was published in April 2012. This updates the Nottinghamshire GTAA of 2007 (which was used to inform the EMRP).
Planning History
23. I have outlined the relevant planning history relating to the previous appeals above.
The Proposal
24. The proposal is for the use of the land as a Gypsy site for 3 pitches, each
comprising a mobile home, touring caravan and amenity building (6 caravans in total) for the Appellant and other named occupiers, with the retention of the associated hardstanding, fencing and access. The details and the overall layout with the position of the proposed amenity buildings, the caravans and parking spaces is shown on a block plan that was submitted with the planning
application.
Common Ground
25. The Appellant and the other site occupants claim to be Gypsies by definition5.
This is not disputed by the Council and in respect of the same proposed
occupiers was accepted by the previous Inspector and the Secretary of State. On the basis of the evidence before me of their cultural background and
nomadic lifestyle I am also satisfied that they come within the definition and, consequently, the policy regime that applies to Gypsies and Travellers is therefore engaged.
26. It was accepted by the parties that Policy E of the PPTS makes it clear that Traveller sites (temporary or permanent) are inappropriate development in the GB which is by definition harmful to the GB and should not be approved, except in very special circumstances.
The Case for the Appellant
The material points are:
27. The essential thrust of the Appellant’s case is that although the proposals are inappropriate development in the GB and would cause some loss of openness and encroachment into the countryside, there are very special circumstances which justify the granting of planning permission at least for a temporary period. The other considerations which are claimed to outweigh the harm are the general need for Gypsy sites in the area and the lack of suitable sites, the personal needs and circumstances of the appellant and the co-occupiers and their human rights.
Green Belt
28. The conclusions of the previous Inspector that the development has reduced the openness of the GB and led to some encroachment into the countryside are accepted. In addition, the previous Inspector’s conclusion that the proposed development would also cause harm in terms of visual impact even though
mitigated to an extent by the presence of existing hedges at the site boundary is not disputed.
29. Inappropriate development in the GB can be outweighed by other considerations which can be a number of ordinary factors which either individually or taken together are very special circumstances. A number of considerations are advanced which, it is contended, outweigh the harm to the GB (by
inappropriateness and other harm) such as to amount to very special circumstances.
30. In summary the considerations relate to the need for sites and the lack of available, suitable, affordable land, the Council’s failure to demonstrate an up-to-date five year supply of sites which is a failure of policy, sustainability of the appeal site, the Appellant’s personal need for a site and the best interests of the children and the human rights and equality implications of refusing to grant permission. I shall consider the matters raised by those considerations within the following sections.
Mature Landscape Area (MLA)
31. The Appellant confirmed that he does not dispute the previous Inspector’s conclusion that the proposed development would not lead to enhancement of the landscape and that the incursion of development would have an adverse effect on the character and quality of the landscape in conflict with LP Policy EV4. The harm would not be substantial and has to be seen in the context of the moderate quality of the landscape.
SSSI & SINC
32.
The effect of the proposed development on nature conservation interests wasnot raised as a main concern of the Council in its Reasons for Refusal of the appeal application although it was considered as a main issue in respect of the previous appeal schemes. The Appellant confirmed at the Hearing that he does not dispute the previous Inspector’s conclusion that the proposed development would not cause material harm to nature conservation interests.
General need for Gypsy and Traveller sites
33. The Courts have confirmed that the question of need extends beyond the Appellant’s personal need for a site to include the general need nationally, regionally and locally. The Government's bi-annual Caravan Counts are universally acknowledged as underestimating the true level of need (for
example, by excluding concealed households), but nonetheless provide an idea of the number of unauthorised encampments across the country and, therefore, the level of unmet need. The latest figures (July 2013) show 4,799 caravans on unauthorised encampments nationally, 52 of which were in Nottinghamshire. This is an increase on the position in July 2011, when the figures were 3,997 and 49 respectively. It is clear therefore that there is a high level of need both on a national and regional level, and very little progress has been made in meeting that need.
34. The most recent full Gypsy and Traveller Accommodation Assessment (GTAA) for took place in 2007 and informed the (then) EMRP which required an
additional 8 pitches to be brought forward for the period 2007-2012. The figures were updated in April 2012 when a review of the GTAA was carried out.
This was a desktop exercise in which the findings of the earlier GTAA were extrapolated based on a number of assumptions. It identified the need for an additional 10 pitches during the period 2011-2016. However, the methodology used in the review is no substitute for a thorough, evidence-based assessment of need and the way some of the figures were calculated is problematic. The Appellant’s view is in line with that of the Inspector who questioned6 the
assumed pitch vacancy rate of 8% over 5 years and the fact that migration from sites has been taken into account but not migration to them. He had
reservations about whether the proposed reduction of the calculated pitch requirement from 17 to 10 in the GTAA review on the basis of assumed vacancies was warranted.
35. Pitches on private sites rarely become vacant and even if this were the case those vacating would still need to find an alternative pitch, either in Ashfield District or within another Local Authority area. If a figure for out-migration is included then one for in-migration is needed as well.
36. Planning permission has been granted on appeal for an 8-pitch site on Park Lane in Kirkby-in-Ashfield but these pitches have yet to come forward. However, work has not yet commenced on that site and, as it is privately owned, there is no guarantee that it will actually be developed or be available for the Appellant’s extended family. Until these pitches have been brought forward, there is a need for 10 pitches. The Appellant stated at the Hearing that if the Park Lane permission was implemented the pitches would be allocated to the developer’s extended family and would not be available to him.
37. There is clearly an outstanding need for sites and the current figures put forward by the Council cannot be relied upon. In fact, there is evidence to suggest that the unmet need is much higher. The Moorbridge Traveller site (at Bulwell) is already oversubscribed and cramped, with a number of pitches accommodating two separate families instead of one and a waiting list of families unable to find anywhere else to stop.
38. Even if the current projections turn out to be accurate, they only go as far as 2016 so the LPA is in any case unable to demonstrate the five year supply of deliverable sites against locally set targets required by PPTS7.
39. There is an intention for the Council to carry out a further GTAA but the process is at a very early stage and the methodology to be used does not yet appear to have been agreed. Until the GTAA has been completed in full, it will not be possible to know the true level of outstanding need. The identification of 7 unauthorised sites in the GTAA, including the Appellant’s, is evidence of existing need in the District which has not been met and is unlikely to be met until site allocations come forward through the LP. In addition a compound growth figure of 3% per annum should be applied not just to the calculated 17 pitches
required to 2016 but to the existing 12 pitches.
40. The PPTS requires this failing to be treated as a significant material
consideration when considering applications for the grant of temporary planning
6 Paragraph 70 of Inspector’s report to Secretary of State Appeal Decisions Refs: APP/W3005/C/12/2170983 and APP/W3005/A/12/2170829
permission. In addition, the emerging LP allocating specific sites for Gypsy and Traveller pitches is still some way from adoption and this leaves a gap which amounts to a failure of policy.
Personal accommodation needs
41. The occupiers of the site are Michael Cash (the Appellant) with his partner Kelly Smith (who I was informed was expecting a child in April 2014), Andrew Cash (the Appellant’s brother), his partner Winnie Ward and their son (aged 6 months) and Kathleen Connors (the Appellant’s aunt), her husband Johny and their three children (aged 6, 4 and 18 months). The occupiers are Irish
Travellers who have travelled together as a family group in the Nottinghamshire area all of their lives and have never lived in traditional housing or had a settled base.
42. The lack of available sites in the area meant their only option was unauthorised encampment, stopping on the side of the road or other available space and subject to the continual threat of eviction. From time to time they were able to stay in the Moorbridge Traveller site in Bulwell, where some members of their extended family reside but this was only for brief periods when other site occupants were away travelling. It did not and cannot provide a permanent base. However, the Moorbridge site is fully occupied and overcrowded and there is no prospect of pitches becoming available in the foreseeable future. Until acquiring the appeal site the only alternative has been roadside occupation which is illegal and unacceptable, especially for young children. The desire has been to find a permanent settled base which would provide residential security and enable children to attend school.
43. A search for sites to accommodate the family group was carried out by the Appellant by approaching local estate agents over a period of about 2 years prior to buying the appeal site and has continued. He visits estate agents in person when possible to obtain details of any available land but when he is travelling he contacts them by email. A sample of correspondence between Mr Cash and agents is provided in his evidence. There is a severe shortage of land within Ashfield which is suitable for a Traveller site and within an achievable price range for the family group to purchase.
44. Mr Cash has looked into the possibility of locating to the Park Lane site but has been informed that those pitches, should they be developed, have already been earmarked for others and would be in great demand should a vacancy arise. There is also the issue of differences between the Romany8 Gypsy and Irish
Traveller communities on the same site. Although the two groups are often treated as a single, homogenous group for the purposes of site provision the reality is entirely different and there are significant differences in their
backgrounds, cultures and ways of life. As such, Irish Travellers are often not welcome on Romany sites (and vice versa), and this further limits the possibility of finding space on another private site. This view is supported by an email9
from Nottinghamshire's Gypsy and Traveller liaison officer setting out the local position.
8 Also referred to in the evidence as “Romani” Gypsy 9 Appellant’s written statement: Appendix 2
45. The family has made an application to the Council's Housing Options team in respect of their potential homelessness (if evicted) but was advised that the only accommodation that might be available to them would be conventional housing. None of the family has ever lived in bricks and mortar and they have a deeply ingrained aversion to it, so this is simply not an option for them.
Other personal circumstances
46. The family wished to establish a settled base in order to provide a more secure environment for their children and to allow them to attend school. Having been unable to identify a more suitable alternative, they bought and moved onto the land in 2011. They felt that it was suitable for them because it was well located for access to the shops and services.
47. The Appellant and co-residents at the site are registered with Underwood Surgery and Kelly Smith attended there for regular pre-natal check-ups. She was being monitored closely by doctors because of a previous unsuccessful pregnancy which resulted in complications. The difficulties of Travellers accessing medical care without a settled base are well-known.
48. The school age child is currently attending Stanstead Primary School which was chosen as it is supportive towards pupils from the Traveller community. The 4 year old child attends a nursery in Bulwell. At the appropriate time the younger children will be able to attend school from the site which would be beneficial to their education and consistent with the objectives of Government policy for Travellers. Without a fixed address it would not be possible to register children at school and this would be detrimental to their education and contrary to the wishes of the parents that their children enjoy the same educational
opportunities as the rest of the population.
Sustainability
49. The PPTS requires10 that Traveller sites should be sustainable economically,
socially and environmentally subject to compliance with a number of criteria. These are all either satisfied or not applicable to the appeal scheme. The appeal site enables the occupiers to have easy access to a range of services (including shops, pubs, etc) in Underwood and to make use of the frequent bus services which run along the Alfreton Road and there are bus stops close by. Integration with the local community is also facilitated by a location on the edge of the village.
Human rights
50. The Courts11 have held that the loss of a home with nowhere else to live may be
regarded as very special circumstances for the purposes of national guidance. This has to be weighed in the balance when considering the value attached to the protection of Gypsy homes against the public value of protecting the GB. Regard must also be paid to human rights and the special and specific
circumstances of the Appellant and his family. The need to have regard to their personal circumstances and the problems created for all concerned by unlawful occupations is now of great importance and should be accorded great weight.
10 PPTS Paragraph 11
51. The dismissal of the appeals and the upholding of the enforcement notice are likely to lead to the site occupants being required to vacate the site. In the absence of any suitable alternative site to move to, this would result in an interference with the residents’ homes and their private and family lives under Article 8 of the European Convention on Human Rights (ECHR). The harm caused to these rights would be far greater than any alleged harm to the GB countryside and a disproportionate measure. Eviction would be likely to lead to enforced roadside encampment which would cause greater environmental damage, highway danger and increased community annoyance.
52. The lack of pitches on existing sites and the lack of suitable alternative land for new sites mean that, if evicted, this family will not have anywhere else in the area to go. They will be forced to travel from one unauthorised encampment to the next, subject to the continual threat of eviction, and may well find
themselves having to go further afield.
53. Article 3(1) of the UN Convention on the Right of the Child requires that "In all
actions concerning children... the best interests of the child shall be a primary consideration." In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, Baroness Hale explained that this means decision makers must
not "treat any other consideration as inherently more significant than the best
interests of the children". She also referred to the UN's Guidelines on
Determining the Best Interests of the Child (May 2008), which make it clear that the term 'best interests' is not confined to health and education but "broadly describes the well-being of a child". For Traveller children this would include (in addition to access to education and health services) such matters as enabling them to develop and maintain friendships, preventing social isolation, and protecting them from the traumatic experience of eviction and the health and safety implications inherent in roadside living. There can be no doubt that eviction from the application site will cause substantial harm to the children attending school and the nursery and is therefore contrary to their best interests.
54. The human rights of the entire family are engaged and it is necessary to consider the question of proportionality and carry out a balancing exercise between the harm caused by the proposed development and the harm which will be caused to the Appellant and his family if they were to be refused planning permission and forced to leave the land with nowhere else to go. 55. Article 8 of the Human Rights Act 1998 (HRA) provides that everyone is entitled
to have their right to live their private and family lives in accordance with their traditions and culture respected and this is not limited to homes which are lawfully occupied but also to homes that have been established in breach of Planning Law and so it is necessary to ask whether State interference is justified under Article 8(2).
56. In addition, the HRA provides that decisions which are made must be proportionate and strike an appropriate balance taking human rights into account. Consideration should be given to the effectiveness of the Council’s actions in refusing the appeal scheme as to whether it the least intrusive interference possible and whether the interference deprives the person of the very essence of the right.
The Case for Ashfield District Council
The material points are:
57. S70a of the Town & Country Planning Act 1990 gives Local Planning Authorities the power to decline to determine an application if an appeal against the refusal of a similar application has been dismissed by the Secretary of State within the preceding 2 years. However, this power can only be used providing there has been no significant change in the development plan or any other material considerations in the intervening period. Although the appeal application reflected the previously dismissed proposal, there were two additional material considerations advanced since the previous application to justify the validity of this application. These were firstly, the requirement to demonstrate an up-to-date five year supply of deliverable sites for Gypsy and Travellers, in accordance with paragraphs 25 and 28 of the PPTS and secondly, a sequential test of
alternative sites was submitted with the application.
58.
The Planning Inspector in dealing with the last appeals concluded that the useas a Traveller site for 3 pitches and 6 caravans constituted inappropriate development in the GB which, by definition, is harmful. The development was also considered to have caused significant harm to the openness of the GB and led to the encroachment into the countryside beyond a well established
settlement edge, contrary to one of the defined purposes of the GB.
Additionally, it was considered that the development has led to some harm to the visual amenities of the GB, which would not be fully ameliorated by new planting and the imposition of conditions.
Green Belt
59. The application site consists of a broadly rectangular shaped piece of land on the south western corner of Felley Mill Lane (South) and Alfreton Road. The application site is bound by a 2m high timber fence which is visually screened from outside the application site by an established mature hedgerow. The application proposes 3 pitches and 3 detached utility blocks with a pitched roof design containing bathroom and laundry facilities.
60. Paragraph 14 of PPTS specifically sets out that Traveller sites in the GB are inappropriate development, however, Paragraph 25 does state that if a Planning Authority cannot demonstrate an up-to-date five year supply of deliverable sites, this should be a significant material consideration for the grant of temporary permissions.
61. On the 12th July 2013 the Secretary of State delivered a WMS indicating that he will consider recovering appeals for Traveller sites in GB areas for his own
decision, "to test the relevant policies at a national level". The Statement went on to state that the issue of unmet demand for Traveller accommodation is unlikely to constitute the very special circumstances needed to justify inappropriate development in the GB.
62. The previous Inspector concluded that the use as a Traveller site for 3 pitches and 6 caravans constituted inappropriate development in the GB which by definition is harmful. The development that had taken place was also
considered to have caused significant harm to the openness of the GB and led to the encroachment into the countryside beyond a well established settlement
edge, contrary to one of the defined purposes of the GB. Additionally, it was considered that the development has led to some harm to the visual amenities of the Green Belt, which would not be fully ameliorated by new planting and the imposition of conditions.
63. Paragraph 88 of the Framework requires substantial weight to be afforded to any harm to the GB and there is conflict with both LP Policy EV1 and criteria a) and b) of LP Policy ST1. This current application does not offer any alteration to the proposed (appeal) scheme and the impact upon the GB should not be
considered differently.
64. The site is in a prominent location at the junction of two roads. The caravans on the land are visible from a number of public vantage points. Alfreton Road forms a clear boundary between the built-up edge of the village of Underwood on the western side and the GB countryside on the eastern side. The
development has led to an encroachment into the rural area harming the openness and visual amenity of the GB. This conflicts with LP Policy EV1 and paragraph 79 of the Framework.
65. The development, including the fencing and hardsurfacing is clearly visible through the access point on Felley Mill Lane (South) and the introduction of 3 amenity buildings with a height to ridge of about 3.9m would add to the intrusion of built development in the countryside. Although there is hedge screening on the road frontages the caravans would be glimpsed through and above the hedgeline. On the field side boundaries the timber fencing has a stark appearance out of keeping with the rural setting. In totality, the
development has had an urbanising influence extending into open countryside where no other development is found.
66. Prior to the unauthorised development taking place the land formed part of a larger field and was in an appropriate agricultural use. It is not previously developed land and the enclosure on four sides with solid screen fencing is contrary to paragraph 24(d) of the PPTS which seeks to avoid such enclosure so as to prevent isolation from the rest of the community.
Mature Landscape Area (MLA)
67. The Council did not provide substantive evidence in this issue to the Hearing but confirmed that it agreed with the previous Inspector’s assessment and
conclusions that the development would not enhance the landscape and its incursion onto farmland would have an adverse effect on the character and quality of the landscape.
68. The Council’s Tree Officer raises no objections to the proposal, acknowledging the loss of part of the hedge and commenting that no significant trees are affected by the proposal. The loss of part of the hedge to allow for the addition of entrance gates, has increased the visibility of the site to the detriment of the visual amenity of the MLA.
SSSI & SINC
69. The Council noted the consultation responses of Natural England (NE) and Nottinghamshire Wildlife Trust (NWT) that the site is in close proximity to
Bagthorpe Meadows and Friezeland Grassland SSSI and is also directly south of the Friezeland Grassland Local Wildlife Site. Neither NE nor NWT raised specific
objections to the scheme, subject to conditions, and the proposal is therefore considered to be acceptable in wildlife terms. On that basis no objection on this issue or conflict with relevant local or national policies is envisaged by the
Council.
General need for Gypsy and Traveller sites
70. The Council currently has a GTAA which sets out a pitch requirement of 10 additional pitches for the period 2011-2016. There is currently a planning permission for 8 pitches at Park Lane, Kirkby-in-Ashfield which has yet to be implemented. The Council accepts there is a need for 2 more pitches to be provided during the period to 2016 and it considers this should be achievable. The forthcoming LP will consider the assessment of need and seek to make provision for it, so as to ensure that a five year supply of deliverable sites for Gypsies and Travellers is provided as required by the PPTS.
71. The Council accepts that it cannot currently demonstrate an up-to-date five year supply of deliverable sites as required by paragraph 25 of the PPTS. However, this is only a material consideration when considering applications for the grant of temporary planning permission, and is to be balanced against all other
considerations and, fundamentally, the site is located within the GB.
72. The Appellant stated in the application that although the application is seeking a permanent consent, he would consider a temporary permission to be acceptable should this proposal for permanent permission be considered unfavourably. As part of this application, the Appellant has undertaken a search for alternative sites. However, the Appellant has not kept full records of the searches
undertaken and the only market assessment of alternative sites was undertaken on the 30 April 2013 on the “Rightmove” website.
73. The Appellant has also registered details with local estate agents and has advised that to date no alternative sites have been found. Whilst the Appellant has advised that alternative sites have been looked at, there is no detail
provided in the evidence to indicate on what criteria the Appellant has searched for sites and why the sites identified on the 30 April 2013 have been found unsuitable. It is therefore considered that this search offers little additional justification to overcome the previous reason for refusal or which would constitute a “very special circumstance”.
Personal accommodation needs and other circumstances
74. Some details of the accommodation needs and other personal circumstances of the Appellant and others intending to occupy the site were provided in the Design and Access Statement which accompanied the application. However, neither the Council’s written statement nor the delegated report provide an assessment of those or consider the human rights and equality issues that were advanced by the Appellant. At the Hearing the Council contended that relevant matters relating to the Appellant’s and other co-occupants accommodation needs, health and welfare had been considered in the previous appeal and the Inspector had concluded that those considerations did not outweigh the harm to the GB.
Council’s conclusions
75. The Council had a duty to consider and determine the application due to the submission of additional information in respect of the site search undertaken by the Appellant and the availability of sites in the area which amounted to
material considerations. However, the additional information provided was not substantive above that considered previously.
76. The Council’s case is consistent with its position in the previous appeals. The development is inappropriate development in the GB and has caused further harm to the GB by reason of loss of openness and encroachment into the countryside. It has also had an adverse effect on the MLA. It therefore conflicts with ‘saved’ development plan polices and the national policy in the Framework and the PPTS.
77. The other considerations put forward by the Appellant do not clearly outweigh this combined harm and so very special circumstances do not exist to warrant granting planning permission, even on a temporary basis.
The Case for a local residents’ group12
78. Objections to the appeal scheme raised by the group are on similar lines to those advanced by the Council. The site is within the GB and the scheme
conflicts with policy at national and local level. Particular reference was made to paragraph 14 of PPTS in that regard. The scheme would not enhance the
environment or increase its openness and was, therefore, in conflict with site characteristics identified (at para 24 of PPTS) to be attributed weight in the selection of sites for Travellers. The Secretary of State places a strong emphasis on preventing inappropriate development in the GB. Very special circumstances sufficient to outweigh harm to the GB and other harm are not proven by the Appellant.
79. The considerations put forward by the Appellant to outweigh the harm to the GB carry little weight even compared to the appeal case presented two years ago. Nothing of substance is put forward in this scheme by the Appellant to justify a temporary planning permission. That was considered two years ago by the previous Inspector and rejected. The present appeal “flies in the face” of the previous decisions.
County Councillor Mrs G Turner
80. Councillor Turner spoke in support of the District Council’s case. She stated that the appeal site was unsuitable for the proposed development as experience of the current occupation of the site by the Appellant and his co-occupants had had a detrimental effect on the quality of life of nearby residents particularly through noise and disturbance. She referred in particular to noise from a generator at the site which she stated had had a detrimental effect on children living in close proximity to the site. The Human Rights of others in the
community should be taken into account as their quality of life had been
12 Referred to in the previous appeals as the “Keep Underwood Green Group” represented by Anthony Asbury Associates Ltd (Matt Hubbard)
reduced and they also have a right to enjoy their property. The present occupants of the site had made no attempt to be a part of the community.
District Councillor Mr J Zadrozny
81. Councillor Zadrozny stated that he held the District Council’s Portfolio for Planning (at the time of the Hearing) and he spoke in support of the District Council’s case. He stated that the policy objections to the scheme are robust and he had confidence in the Planning Officer’s recommendation. The present case is almost identical to the previous appeal scheme that was dismissed and he does not consider that the there are any material changes advanced to outweigh the harm.
District Councillor Mr R Sears-Piccavey – Ward Councillor for Underwood
82. Councillor Sears-Piccavey spoke in support of the District Council’s case. He also raised concerns regarding noise from a generator at the site which had led to disturbance to nearby residents. He referred to the previous appeal decisions and noted that the period allowed for the use to cease had elapsed. The
arguments advanced by the Appellant regarding the lack of suitable sites in the area are weak. He produced a copy of e-mail correspondence13 with an officer
of Newark and Sherwood District Council (NSDC), an adjacent local authority, which stated “We don’t have an “official” Gypsy and Traveller site run by the
local authority in NSDCs area, but there are always pitches available on a number of private sites in Tolney Lane, Newark, which is where the Travelling community are concentrated in these parts”.
Individual residents at the Hearing
83. A number of local residents present at the Hearing spoke briefly regarding aspects of the scheme and supported the Council’s opposition to the proposed development. Individual comments were made regarding the manner of the initial occupation of the site, the operational works that had been undertaken and the retrospective nature of the subsequent planning applications.
Written Representations
84. A substantial number of letters of objection were received at both the planning application and appeal stages from local residents. Objections were received from Selston Parish Council. It opposed the development for the same principal reasons advanced by the Council in respect of development in the GB but also indicated that there are sufficient Traveller’s sites in Ashfield with some unused pitches. It expressed concern that if the development was allowed the site could be used for more than the permitted number of caravans or extended into adjacent land.
85. Letters from local residents dealt with similar issues and added grounds of harm to nature conservation, visual impact (in part from houses opposite the site), highway safety and to landscape features including hedgerows at the site boundary. The need for the proposed built utility blocks was also questioned. Objectors also refer to the commercial use of the site, crime and antisocial behaviour, the present development occurring without planning permission and
its possible intensification, the effect on the nature of the local community, precedent, lack of need or local connection of site occupants; part of the site being historic landfill; heritage of the area (links to D H Lawrence) and property values.
86. Natural England (NE) and the Nottinghamshire Wildlife Trust (NWT) note
the proximity of the site to Bagthorpe Meadows and Friezeland Grassland SSSI and also Friezeland Grassland Local Wildlife Site, however, given the nature and scale of the development and the distance of separation, no objection is raised subject to the imposition of certain conditions.
87. The Severn Trent Water Authority and Ashfield District Council
(Drainage Section) raise no objection subject to tests of the land to assess its
suitability for soakaways and conditions regarding drainage. Nottinghamshire
County Council (Highway Authority) raise no objection subject to the
imposition of a recommended condition regarding surface water drainage.
Planning Conditions
88. The Council has provided14 a list of recommended conditions in the event of the
appeal being allowed. The Appellant accepts those suggested conditions. 89. Conditions controlling the layout, landscaping (to include hedge retention and
maintenance), and drainage were agreed in principle. Although it is anticipated that a mains electricity connection would be provided following the grant of planning permission, a condition to control noise from generators is suggested. A condition requiring details of the facing materials to be used in the amenity blocks is also accepted. Other conditions recommended concern an occupancy restriction to those of Gypsy and Traveller status only and the preclusion of business or commercial use.
90. In addition, conditions for a limit on the weight of vehicles parked on the site of 3.5 tonnes and in respect of drainage, tree, hedge and shrub planting, boundary treatment and measures to promote wildlife were canvassed at the Hearing and accepted by the principal parties.
91. If a temporary permission was found to be acceptable the parties accepted that in addition to the above conditions it should relate to particular named
occupants of the site and with provision for the cessation of the use after the end of the temporary period and re-instatement of the land to its previous condition. I will return to consider these conditions below. Schedules are attached at the end of this report setting out the conditions I would recommend if the Secretary of State decides to allow the appeal and grant planning
permission.
Inspector’s Conclusions
92. The following conclusions are based upon the evidence given at the Hearing, the written representations submitted and my inspection of the site and the
surrounding area. In this section the numbers in square brackets [] refer to paragraphs in the preceding sections of this Report.
93. It is accepted by the principal parties that the development constitutes inappropriate development in the GB [27, 60]. Taking that into account I consider that the main issues are as follows:
(1) the impact of the development on the GB in terms of its openness, visual amenity and the purposes of including land within it;
(2) the impact on the character and appearance of the MLA;
(3) the impact on the nature conservation interests of the Bagthorpe Meadows and Friezeland Grassland SSSI/SINC and the appeal land itself;
(4) the impact on the living conditions of nearby residents;
(5) whether the harm to the GB by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.
The other considerations are:
(a) the general need for and supply of Gypsy sites in the area; (b) the accommodation needs of the Appellant and those residing on
the appeal site and their personal circumstances; and
(c) the human rights of the Appellant and those residing on the appeal site.
Green Belt
94. The appeal scheme would reduce the openness of the GB and lead to
encroachment into the countryside [28 62]. This has already occurred due to its current occupation. Consequently, the scheme conflicts with the
requirements of LP Policy EV1 and the tests set down in paragraphs 79 and 80 of the Framework [14]. The proposed development would clearly form an incursion of development onto agricultural land on the eastern side of Alfreton Road, beyond the clearly defined edge of the settlement of Underwood. In this area Alfreton Road provides a firm boundary between urban development on one side and open agricultural land on the other [64].
95. Notwithstanding those factors, the site is modest in size and is close to the urban edge of Underwood and not in a detached or remote location. To satisfy national policy considerations Traveller sites may be permissible in rural and semi-rural locations. Nevertheless, I consider that the physical impact of the development, the loss of openness and the encroachment beyond a well-defined and defensible development limit, as so defined in the LP, has caused significant harm to the character of the locality.
