Law Report: Time when gypsy status should be considered

Thursday Law Report: 11 November 1999; Hearne v National Assembly for Wales and another; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Pill and Lord Justice Judge) 22 October 1999

WHERE AN inspector holding an inquiry into an application for planning permission had to decide whether the applicant was a gypsy, and was therefore entitled to take advantage of those provisions in the planning policies appropriate to gypsy caravan sites, the question to be considered was the applicant's status at the time of the inquiry, and not at the time when he had moved on to the land in question.

The Court of Appeal upheld the decision of the High Court, which had dismissed the appeal of John Hearne against the refusal of his application for planning permission.

In September 1997 the local planning authority issued two enforcement notices against Mr Hearne, who came from a gypsy family, with respect to alleged breaches of planning control at certain land in Carmarthenshire. The notices alleged a change of use of the land from agricultural use to use for the siting of a residential caravan and ancillary units.

Mr Hearne appealed against the notices and applied for planning permission, but, following an inquiry in April 1998, the inspector upheld the notices and required him to cease the use of the land as a caravan site.

The inspector concluded that Mr Hearne "came within the definition of a gypsy prior to moving to the [appeal] site" in July 1997. However, he found as a fact that, having stated in evidence his intention to give up his nomadic way of life and settle on the site, Mr Hearne was no longer to be regarded as a gypsy for planning purposes, and accordingly could not expect the more favourable consideration of his application which gypsy status would attract. Section 24(8) of the Caravan Sites and Control of Development Act 1960 provided that: " `gypsies' means persons of nomadic habit of life, whatever their race or origin".

Mr Hearne appealed to the High Court under section 289 of the Town and Country Planning Act 1990 against the inspector's decision, contending that his application for planning permission should have been considered on the basis that it was an application for a gypsy caravan site, and that his intention to settle down and give up his gypsy status did not deprive him of the right to seek planning permission as a gypsy for a gypsy caravan site. He submitted that the time to consider his status was the time when he had moved on to the land, and not any other time.

The judge dismissed the appeal, holding that it did not matter when precisely Mr Hearne had lost his gypsy status, the question being, rather, whether that status would be retained following the development of the appeal site.

A. Masters (Battens, Yeovil) for Mr Hearne; Alice Robinson (Treasury Solicitor) for the respondents.

Lord Justice Pill said that the inspector, in determining the planning application before him, had had to decide what planning policies he would apply. In the present case, that depended upon Mr Hearne's status. If, as a matter of fact, he was a gypsy, he was entitled to take advantage of those provisions in the planning policies appropriate to gypsy caravan sites. If he was not a gypsy, he was not so entitled, and ordinary and conventional planning policies would govern the inspector's judgment.

The relevant time for the inspector's consideration of which planning policies to apply was the time of the inquiry. He had made a plain finding of fact that at the relevant time Mr Hearne was not a gypsy.

The submission that the inspector's reference to Mr Hearne's intention in his conclusions in any way invalidated the finding of fact which he had made would be rejected. In considering what a person's present status was, his intentions might be relevant. The inspector had to consider all the evidence and consider on that evidence whether at that time Mr Hearne had the status of a gypsy.

Mr Hearne had relied on the decision in Runnymede Borough Council v Secretary of State for the Environment [1992] JLP 178, i.e. that the time for consideration of gypsy status was immediately before moving on to the appeal site, but that decision could not be supported.

Kate O'Hanlon

Barrister