Appeal 6001025

The appeal is dismissed.

I have amended the site address in the banner heading above to refer to [address], rather than [site address] , as suggested by the Authority and since this more accurately reflects the site’s location.

I observed that there were some caravans on the appeal site, albeit in different locations to those proposed. For the avoidance of doubt, this appeal decision is based on the submitted drawings and the description of development for which planning permission was sought, set out above.

In determining the appeal, I have had regard to an earlier appeal decision relating to the site, dated 5 June 20241 (the earlier appeal).

Given a change in circumstances arising since the refusal of planning permission, the Authority has confirmed that its second reason for refusal, relating to effects on designated habitats sites, has fallen away. As this is no longer a matter in dispute between the main parties, I have not dealt with it as a main issue in the appeal.

The main issue is the effect of the development on the landscape character and the South Downs National Park (the SDNP).

The site lies in the SDNP which is a landscape designation of national importance. The National Planning Policy Framework (the Framework) requires that great weight be given to conserving and enhancing landscape and scenic beauty in National Parks and other designated areas, which have the highest status of protection in relation to these issues. Core Policy SD1 of the South Downs Local 1 [name]/Y9507/X/23/3329238 and APP/Y9507/C/23/3329360 Plan 2019 (the LP) reiterates that National Parks have two purposes, both conservation and encouraging recreation, and there is a need to achieve a balance between these purposes. Where there is a conflict between these purposes, greater weight should be attached to the conservation purpose. In addition, relevant authorities must seek to further the statutory purposes of the protected landscape2.

The site lies within a distinctly rural area with a tranquil character arising from its very dispersed pattern of development and activity. It is within character type L1: Rother Valley Mixed Farmland and Woodland Values, as defined by the South Downs Integrated Landscape Character Assessment (LCA) 2020. This describes that the key characteristics of the area include mixed farmland, neutral grassland and woodland including thick, high hedgerows, and a landscape of scattered hamlets and isolated farmsteads set among irregular fields. The appeal site includes some existing low level buildings set close to the road and behind a hedgerow, with open fields extending to the east, divided by some further hedgerows. Notwithstanding the existing caravans, the appeal site contributes positively to the landscape character of this part of the SDNP.

Under the earlier appeal, the Inspector found the use of the land for stationing caravans to be uncharacteristic and alien to the landscape and natural beauty of the SDNP. They also identified a breach of policy arising from the introduction of electric lights at night-time in a relatively tranquil and remote rural area characterised by predominantly dark skies.

Pitch 1 would be modest in size and positioned among existing buildings set close to the road, while Pitch 2 would be further back from the road in a more exposed position. There is no evidence of an intended site layout, although the supporting documents refer to one or two caravans per pitch and a small day-room. In any event, both pitches and their associated activity would be perceived to some degree from the road, particularly from the access points and at times of year when there is less foliage on the surrounding trees and hedges. At those times, the caravans and associated domestic items would appear in stark contrast with this distinctly rural setting and the associated activity at odds with its tranquillity.

Based on the evidence, the visual effects are likely to be limited to localised views, and largely in fleeting glimpses from the road. Nonetheless, the proposal would not preserve the landscape setting and there is not substantive evidence which would now lead me to a different conclusion to the earlier Inspector.

It is suggested that the timber fencing, referred to specifically in the earlier appeal decision, could be replaced with native hedging and ecological planting. While this would improve the natural and verdant character of the site, in the absence of details of its location and species I cannot be satisfied that this would mitigate the above concerns or provide sufficient screening. I am also not satisfied that it would in itself preserve and enhance the landscape character. Given this uncertainty and the importance of this matter to the acceptability of the proposal, it would not be appropriate that it is addressed by a planning condition at a later date.

While external lighting may be capable of being controlled by a planning condition, given the residential use it is likely that some lighting would be required, particularly in darker months. External lighting, as well as lighting from the mobile 2 Section 245 ([name]) of the Levelling-up and Regeneration Act 2023 homes and buildings, would accentuate the presence of the development in this remote area. Similarly, while materials and their colour could potentially be conditioned, there is not sufficient detail here of what surfaces this would relate to or the visual effects that this would have. In the absence of such details, I cannot be satisfied that such conditions would be successful in avoiding adverse effects on the landscape.

In conclusion on this main issue, the development would cause harm to, and accordingly neither preserve nor enhance, the landscape character of the SDNP. It would conflict with policies SD1, SD2, SD4, SD5, SD7 and SD8 of the LP insofar as they relate to the National Park purposes, conservation and enhancement of the landscape, dark night skies and tranquillity. The development would conflict with the first purpose of the National Park designation and would not further the purposes of the protected landscape. Insofar as this main issue is concerned, I do not find conflict with Policy SD2 which relates to ecosystem services.

The site is located close to the Arun Valley SSSI, Special Area of Conservation (SAC), Special Protection Area (SPA) and Ramsar sites, referred to on the Authority’s decision notice. The Authority also refer to The Mens and [name]. Regulation 63(1) of the Habitats Regulations3, however, indicates the requirement for an Appropriate Assessment is only necessary where the competent authority is minded to give consent for the proposal. As the appeal is being dismissed on other grounds it is not therefore necessary to address this in any further detail.

The Authority accept that it cannot demonstrate a five year supply of deliverable sites and therefore the provisions of paragraph 11d) of the Framework apply to the appeal. However, the application of policies in the Framework that protect National Parks provide a strong reason for refusing the development proposed. The proposal does not therefore benefit from the presumption in favour of sustainable development set out in the Framework.

Nonetheless, there are other considerations which the appellant considers weigh in favour of the development. Given the information before me and the findings of the earlier Inspector, I have accepted that the appellant’s meet the definition of Gypsies and Travellers set out in the Planning Policy for [name] (PPTS) for the purposes of this assessment. For the purposes of this balancing exercise, I have also assumed the issues relating to designated habitat sites are capable of resolution and do not weigh against the development.

There is dispute surrounding whether the site is previously developed land (PDL). The Authority state the site to have formerly been an agricultural small-holding, which would be exempt from the definition of PDL set out in the Framework. The earlier appeal decision suggests the lawful use of the site could be equestrian given an earlier 1990 planning permission, however I understand this relates to the northern building and it is not apparent that this would encompass the entirety of this appeal site. Varied references to agriculture elsewhere in the evidence, including on the application form, add to this uncertainty. Put simply, there is insufficient evidence to support that the site should be treated as PDL and this does not therefore weigh in favour of the development. 3 The Conservation of Habitats and Species Regulations 2017

The appellant refers to caselaw and a number of other cases. However, these appear to relate to different balances of considerations and different sites and do not provide a reason to alter the above judgement. Neither do I consider the earlier Inspector’s conclusions on this site, relating to the provision of a toilet for the smallholding, widening of the access and repairs to hard surfaces near the older timber building, weigh in favour of this appeal scheme or provide reason to alter my findings.

The Authority accept that there is an unmet need for 14 further Gypsy and Traveller pitches within the Chichester part of the National Park for the period between 2024 and 2042, based on the findings of its needs assessment of December 20244. The Authority acknowledge there are no outstanding Local Plan allocations or unimplemented planning permissions for Gypsy and Traveller accommodation in the Chichester part of the National Park. Nonetheless, Policy 33 of the LP relates to the provision of new pitches in the National Park and includes that they should be granted where it is demonstrated that the objectives of the designation will not be compromised. That policy therefore provides some mechanism to deliver pitches which could contribute to the need, including in the National Park. Taken together, given the unmet need and the policy to deliver windfall sites, these factors attract moderate weight.

Details of the appellants and their circumstances have been provided, which set out their strong connections to the local area and Gypsy heritage. Having regard to the considerations of paragraph 25 of the PPTS, I do not have substantive details surrounding potential alternative accommodation, but have no strong reason to doubt that dismissing the appeal could give rise to the need for the appellants to reside on land without authorisation as described.

While the evidence refers to the best interests of the children, there is not evidence of children being involved here and I cannot therefore establish that granting planning permission would be in their best interests. As such this does not attract additional weight in favour of the development.

Nonetheless, dismissing the appeal would represent an interference with the home of the occupants such that Article 8 of the Human Rights Act is engaged. There is also a positive obligation imposed by Article [address] of life. The development meets the needs of those persons with a relevant protected characteristic, by reason of race, and so, as required by section 149(1) of the Equality Act 2010, the public sector equality duty is applicable. There is therefore a need to have due regard to eliminating discrimination, advancing equality of opportunity and fostering good relations.

The human rights interference associated with this conclusion is in accordance with the law and is necessary in a democratic society to protect environmental interests which is a legitimate objective. The public interest cannot be achieved by means that cause less interference with the appellant’s rights. Therefore, dismissing the appeal is a proportionate response in these circumstances and a violation of rights under Article 8 would not occur.

In accordance with the public sector equality duty, due regard has been paid to minimising the disadvantages suffered by the occupants of the site, assuming they are without a permanent home and to meeting their needs in so far as they are 4 The Gypsy, Traveller and Travelling Showpeople Accommodation Needs Assessment, December 2024 different to those without a relevant protected characteristic. Whilst ultimately the appeal is to be dismissed, these considerations have been at the forefront of the decision-making process and given the nature of the objection identified here, the outcome is a proportionate one.

Overall, the benefits of the development and other material considerations do not outweigh the harm to the landscape character of the National Park where I must give great weight to conserving and enhancing its landscape and scenic beauty. Nor do they justify a decision other than in accordance with the development plan.

I have considered whether to grant temporary planning permission. The development would still present harmful effects on the National Park during a temporary period and there is no strong indication that a change in circumstances surrounding unmet need and availability of alternatives would occur by the end of that temporary period. The benefits in that instance would similarly not be sufficient to outweigh the harm caused by a temporary development.

The proposal would conflict with the development plan and there are not material considerations of sufficient weight which indicate that a decision should be made other than in accordance with it. The appeal is therefore dismissed.