Neutral Citation Number:  EWHC 3361 (Admin)
IN THE HIGH COURT OF JUSTICE Case No CO/5700/2008
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Monday 24 November 2008
B e f o r e:
MR JUSTICE CRANSTON
on the application of
- v -
LONDON BOROUGH OF LEWISHAM
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Mr Alexander Booth (instructed by Richard Buxton, Cambridge
CB1 1JP) appeared on behalf of the Claimant
Miss Saira Kabir Sheikh (instructed by Lewisham Legal Services)
appeared on behalf of the Defendant
J U D G M E N T
(As Approved by the Court)
Monday 24 November 2008
MR JUSTICE CRANSTON:
1. The claimant seeks to challenge the council's decision to grant planning permission. The proposal concerns the use of a former school site as a site for travellers and gypsies. The claimant is a resident of Church Grove, which provides access to the site. The concern is that the width of Church Grove is such that it will be difficult for caravans to access the site without mounting the kerb. The claim has been put this morning by Mr Booth with conspicuous clarity: that the members of the planning committee were not taken to the relevant guidance and that on that basis there is an arguable case that the council, in granting itself planning permission, has acted in breach of the law.
2. The Draft Guidance on the Design of Sites for Gypsies and Travellers was published in May 2007. I am told this morning that it has never been adopted in final form. Paragraph 4.6 is entitled "Access for Emergency Vehicles". Paragraph 4.6.2 reads as follows:
"Essential to enable this, suitable roads must be provided with no caravan or park homes more than 50 metres from a road. Roads must have no overhead cable less than 4.5 metres above the ground. Vehicular access and gateways must be at least 3.1 metres wide and have a minimum of 3.7 metres."
Paragraph 4.6.3 reads:
"Essential roads must be not less than 3.7 metres wide, or, if they form part of a one-way traffic system, 3 metres wide."
3. Further guidance published in 2008 is entitled "Model Standards 2008 for Caravan Sites in England". The Model Standards contain a provision in the introduction which reads:
"These standards only apply to those sites which contain caravans that are used as permanent residential units. They do not apply to sites used exclusively for holidays or touring caravan sites, for which separate model standards have been issued. The standards do not apply to sites occupied by gypsies or travellers or caravan sites which house agricultural works."
The explanatory memorandum to the Model Standards contains a provision headed "Roads, Gateways and Overhead Cables". It reads:
"Roads shall be designed to provide adequate access for emergency vehicles and routes within the site, for such vehicles must be kept clear of obstruction at all times.
New two-way roads shall not be less than 3.7 metres wide, or if they are designed for and used by one-way traffic, not less than 3 metres wide.
Where existing two-way roads are not 3.7 metres wide, passing places shall be provided where practical.
Vehicular access and all gateways to the site must be a minimum of 3.1 metres wide and have a minimum height clearance of 3.7 metres."
The explanatory notes to the Model Standards say at paragraph 13 that the standards represent good practice. They do not apply to sites which are used for gypsies and travellers.
4. The present proposal was considered by council officers who had regard to a report prepared by Savell Bird & Axon ("the Savell report"). At paragraph 3.8 that report said that the Secretary of State had published draft guidance on the design of sites for gypsies and travellers. In other words, the Savell report took into account the draft guidance. At paragraph 3.9 the Savell report said that appropriate weight should be attached to that draft guidance as a document at an early stage in its consultation process, a point subject to explicit recognition in the guidance. Paragraph 3.13 of the Savell report said that the width of Church Grove was under the width recommended for emergency vehicular access. At paragraph 3.25 reference was made to the width of Church Grove, although reference was also made to the fact that it had had long-standing use to serve existing residential properties and the school, and that "its use to access the traveller site is considered acceptable". Paragraph 5.4 of the Savell report referred to the width of Church Grove and the ability of caravans and static homes to access it as a key issue. Paragraph 5.5 said that the typical sizes of expected caravans are 2.2 metres wide and of static homes 3.6 metres wide.
5. The officers prepared a report on the basis of the Savell report and other considerations ("the officers' report"). At 3.19 of the officers' report there is a reference to the existing conditions in Church Grove. The officers note that Church Grove is generally 4.6 metres wide with footpaths on both sides, which leaves an effective usable carriageway of 2.6 metres. They note that the majority of residents have to park on the street. In particular paragraph 4.15 notes that Church Grove is generally 4.6 metres wide between kerbs and that cars are closely parked against the eastern footpath, which leaves a residual 2.5 metres of available carriageway width for passing vehicles.
6. Both the Savell report and the officers' report went before a meeting of the Lewisham Planning Committee which was held on 13 March 2008. At that meeting the local councillor, Councillor Milton, objected to the proposal. He raised the issue of restricted access to the site. One of the residents, Mrs Clare Burnley-Jones, who attended that meeting, kept detailed minutes of what occurred. Her notes record that on a number of occasions the access issue was raised. When Councillor Milton made his objection, Councillor John mentioned the concerns in relation to access to the site, in particular the width of caravans. There was also reference to the size of continental caravans. The point was made that a large continental caravan was too big for Church Grove. Static caravans were also a problem. There would be a need to suspend parking bays. The informal minutes kept by Mrs Burnley-Jones record the acknowledgement by one of the councillors that the road was very narrow and only just wide enough for the average caravan. There was some discussion of measurements.
7. I can well understand why the local residents are concerned about access to this site by large vehicles. I have seen photographs which demonstrate that, because of parked cars, it is necessary for their vehicles to mount the pavement. The photographs show that that causes considerable damage to the footpath. That is a matter which is underlined in the witness statement of Mr Terry Edge, another resident of Church Grove.
8. However, as a matter of law the fact is that the two documents -- the Model Standards and the Draft Guidance for Gypsy Sites -- do not directly apply in this case. The Draft Guidance is precisely that, a draft. However, it was mentioned in the Savell Report, which went to the councillors. Similarly, the Model Standards make clear that they do not apply to this sort of site. Nevertheless, it is clear both from the official minutes and those kept by Mrs Burnley-Jones that the issue of the width of the road was clearly considered by the members of the planning committee. They took into account this material consideration. It was up to them to give it what weight they thought it deserved.
9. I have listened carefully to Mr Booth's cogent submissions, but at the end of the day there is no arguable case as a matter of law. I refuse the application.