Ruben Giles & Ors v Secretary of State for Housing, Communities and Local Government & Anor

The claimants bring a claim pursuant to the provisions of section 288 of the Town and Country Planning Act (“s.288 claim”) and for permission to bring a statutory appeal against the refusal to allow the appeals brought against an enforcement notice pursuant to the provisions of section 289 of the Town and Country Planning Act (“s.289 appeal”). Both claim and appeal are with respect to the Decision made on 19 September 2025 by the Inspector Martin Allen BSc(Hons), MSc, MRTPI appointed by the Secretary of State for Housing, Communities and Local Government (“SSHCLG”). Both appeals are with respect to the land off Kayte Lane, Southam, Cheltenham, Gloucestershire GL52 3PD (“the Site”).

On 13 July 2023, the named claimants applied to Tewkesbury Borough Council (“Tewkesbury BC”) for planning permission for change of use of the Site to use as an eleven pitch gypsy/traveller site. The application for planning permission was refused by Tewkesbury BC for the seven reasons contained in the Decision dated 21 November 2023. In summary, the reasons for refusal were:

The decision to refuse the grant of planning permission was appealed by Mr Leonard Hughes. Mr Hughes is not one of the named claimants in these current applications to the Court. This planning appeal became known as “Appeal L”. The claim under s.288 challenges the dismissal of Appeal L.

On refusal of the grant of planning permission the development proceeded without permission. This resulted in Tewkesbury BC serving an Enforcement Notice (“EN”) on 24 July 2024. The EN provided that within a period of 12 months of the EN the site was to cease to be used as a gypsy/traveller site. That part of the EN was amended by the Inspector so that the wording made it clear that the obligation was to cease the entirety of the change of use to avoid any confusion. The EN required the removal of all caravans (including static, touring and motorhomes); the removal of all sheds, containers and portable toilets; the removal of all fencing and gates within the land together with all perimeter fencing; the removal of all residential paraphernalia; the removal of hard surfacing and relaying of grass; all CCTV columns to be removed; and all waste and debris to be removed.

The claimants brought appeals against the EN dated 24 July 2024 pursuant to grounds (a) to (g) of section 174(2) of the TCPA 1990 against the enforcement notice. Ground (a) is a deemed retrospective application for planning permission for the unauthorised development alleged in the enforcement notice. Ground (g) is a request for more time to comply with an enforcement notice. These appeals against the EN were known as appeals A-K.

Initially the appeal against the refusal to grant planning permission and the appeal against the EN were listed to be heard together before the Inspector at an Inquiry. On 28 November 2024, it was decided to deal with both appeals by way of written representations. I will return to that decision in due course as it is a matter about which the claimants complain. As part of the written procedure, the Inspector undertook a solitary site visit on 29 May 2025.

The Inspector determined the Appeal against the refusal of planning permission and the appeal against the Enforcement Noice under section 174(2)(a) of the TCPA 1990 (retrospective planning permission) together and dismissed both the appeal against the refusal of planning permission and against the enforcement notice, setting out his reasons for the refusals in his Decision dated 19 September 2025.

The Inspector had identified the main issues for determination as being whether the development was inappropriate in the Green Belt; the effect of the development on the character or appearance of the area (including the effect on trees); the effect on highway safety; the effect on biodiversity; whether, if it is inappropriate development in the Green Belt, the harm is outweighed by other consideration so as to amount to very special circumstances.

The Inspector set out in his Decision his consideration of the main issues and found that the appeal site comprises grey belt land, that the development would not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan and that there is a demonstrable unmet need for the type of development proposed, the harm to the highway safety results in the development not being at a sustainable location and the development is therefore inappropriate development in the Green Belt (para. 22). He found that while Tewkesbury BC could not demonstrate a 5-year supply of Gypsy Traveller pitches (where paragraph 28 of the Planning Policy for Traveller Sites (PPTS) provides that is a “significant material consideration”), he also found that:

The Inspector set out his reasoning on the “planning balance” in paragraphs 52 to 61 of the Decision, including whether it was appropriate to grant temporary permission, that he was conscious of interference of Article 8 rights, and the requirements of the Public Sector Equality Act Duty. He concluded that the development conflicts with the development plan as a whole and that there were not material considerations of sufficient weight to indicate that a decision should be taken otherwise than in accordance with development plan (paragraph 62) and that for the reasons he had given in the Decision the appeal against the refusal of planning permission and the appeal under ground (a) should be dismissed. With respect to the ground (g) appeal he determined that the period for compliance did not fall short of what was reasonable and refused that appeal. He balanced the desire to extend the compliance period against the persisting harm to highway safety that results from retention of the development for a longer period and concluded that 12 months provided an appropriately balanced time to allow the occupiers to seek alternate accommodation arrangements.

The issues raised in the s.288 statutory review and the s.289 appeal overlap, and hence why the two matters are being heard together.

In the statement of facts and grounds dated 27 October 2025 in the s.288 statutory review, it is set out that the decision of the Inspector should be quashed on the basis that the Inspector’s decision “that the highways issue could not be made subject of a condition was unlawful. More was required of the Inspector even though the appeals were dealt with by written representation and the use of that method of determination for a Traveller site appeal with such serious consequence for those concerned, or without varying it, was unlawful.” In his oral submissions, Mr Cottle – Counsel for the claimants – submitted that it was a “crying shame that a legal easement was not required by the Inspector.” It is argued on behalf of the claimants that permission should be granted as it is arguable that the Inspector misdirected himself when he concluded that, because it covered a neighbour’s land, it would be impossible to achieve and maintain the splay lines that would be necessary to avoid harm to highway safety which the Inspector stated he accorded “the fullest possible weight.” It was further submitted that a negative Grampian condition was an option that the Inspector needed to canvas.

The core issues raised across the two cases are:

The Claimants initially requested that the appeal be dealt with by way of a Public Inquiry. In the letter dated 27 August 2024, setting out their grounds of appeal against the EN, the Claimants set out:

In the Enforcement Notice Appeal Form, under “Choice of Procedure”, the Claimants set out that the appeals are requested to be heard by way of Public Inquiry due to the potential technical issues regarding Highway Safety and Flood Risk. It was said that the Claimants would be seeking to provide consultant reports on those issues. Additionally, the Claimants raised “the matter of status” as well as personal circumstances. It was anticipated that the evidence would be given under oath. It was further said that “the matter of Need will be complex in this case due to the December 2023 change to the PPTS definition, and the position presented by the LPA. The appellant considers it necessary to exercise cross examination of the LPA’s witnesses on need and supply matters.” It was anticipated that the appellant would be seeking to call at least 12 witnesses together with a potential of five expert witnesses.

Tewkesbury BC also requested an inquiry, which was estimated to take 4 days, and said no to the written procedure.

Mr Hughes, who brought the section 78 appeal against the refusal of planning permission requested a hearing rather than an inquiry.

The planning inspectorate confirmed on 3 October 2024, that the enforcement appeal would proceed by way of an inquiry but at a case management conference on 24 November 2024, those acting for the claimants requested for the date of the inquiry to be vacated as they were unable to attend and there was no one else available. On 28 November 2024, the planning inspectorate wrote to say that:

On 5 December 2024, the Claimants’ representatives responded in the following terms:

In the letter from the planning inspectorate to the parties dated 13 December 2024, the following reasoning for the alteration from an inquiry to the written procedure was set out as follows:

The letter proceeded to remind the parties of the requirements set out in the Inspector’s letter of 28 November 2024 for:

The letter then set out that the Inspector had noted that the appellant’s agent had stated that they are not able to act on behalf of the appellants as they cannot attend the event as scheduled, and that “The decision to vary the procedure is being taken irrespective of the challenges with the Inquiry date for the agent, and for the reasons above.” The decision was set out that the procedure would be varied from a Public Inquiry to Written Representations and that the Public Inquiry scheduled for 14 January 2025 would not take place.

The Claimants and their agent did not seek to challenge that decision. Had there been a concern, and had the Claimants objected to the appeals being dealt with by the written procedure then there was an opportunity to challenge by way of judicial review at that time. The Claimants did not challenge the decision set out in the letter dated 13 December 2024 and, on the contrary, as is set out in paragraph 26 below, on 19 December 2024 confirmed their agreement to the written representations procedure.

While the issue has not been definitely settled, in Bluebell Cemetery Limited v SSCLG [205] EWHC 2339 (Admin) Holgate J (as he then was) set out his preferred view that if there is to be a challenge to the mode of appeal then that must be made at the appropriate time (that is within the time limits from the date of decision) by way of judicial review after the decision about mode of appeal is made. He referred to the decision of Wynn Williams J in Westerleigh Group Limited v SSCLG [2014] EWHC 4313 (Admin) and the decision of Lewis J (as he then was) in Connors v SSCLG [2014] EWHC 2358 (Admin). In those cases it was determined that a challenge to a mode of appeal did not fall within the scope of section 288 of the TCPA 1990.

In my judgment, a challenge to the mode of appeal needs to be made by way of judicial review when the decision is made. A challenge to any decision on an appeal under section 78 can only be brought under section 288. The effect of section 284 of the TCPA 1990 is to oust the remedy of judicial review, but matters not covered by section 288 may only be dealt with by judicial review. In Westerleigh Wynn Williams J. agreed with the submission that a challenge to a decision as to the mode of appeal did not fall within the scope of section 288 and in Conners Lewis J. held that a challenge to a decision by the Secretary of State to recover the determination of an appeal to himself was excluded from the statutory review procedure and could only be challenged by way of judicial review. There are, as Holgate J. noted in Bluebell Cemetery, sound practical reasons which support the challenge needing to be made by way of judicial review at the time of the decision: planning appeals involve several parties and may involve many participants with many different interests, each potentially incurring substantial costs. The statutory review process under section 288 deals with the final determination of an appeal. The public law challenges, where properly arguable, deal with the earlier discrete decisions, so those are settled before further substantial costs are incurred.

I am satisfied, therefore, that the Claimants in this matter are not entitled to challenge the lawfulness of the appeal procedure many months later, in the course of the section 288 and section 289 appeal. In the letter dated 19 December 2024 the Claimants’ agents noted that they were continuing to represent the Claimants and “Whilst the proposal for Written Reps is not ideal for our clients, as they will not be able to fully participate and understand proceedings given difficulties reading and writing. However, we have explained that the alternative is to remain unrepresented, and cause delay to proceedings, which may have ramifications on the conclusions of the appeal. On this basis, they have agreed to the proposal of progressing by way of Written Representations….”

While this cannot be said to be a ringing endorsement of the use of Written Representations, the Claimants were agreeing to what they recognised to be a “proposal” and did not seek to further dissuade the planning inspectorate from making the decision to deal with the matter by written representations. In the Claimants’ submissions emphasis has been placed upon the word “imposition”, but that was not with respect to the Written Representations procedure but was with respect to the date of the Inquiry and used by the Claimants in the letter dated 5 December 2024.

The decision to use the Written Representations procedure was plainly grounded in the published criteria for the mode of determination (the guidance “criteria for determining the procedure for planning, enforcement, advertisement and discontinuance notice appeals”). The three issues to be considered – the planning issues being clearly understood from the appeal documents; the issues are not complex and the inspector not likely to be needing to test the evidence; the alleged breach and the requirements of the enforcement notice are clear – were all expressly set out in the letter dated 13 December 2024.

Having considered the published criteria, it is necessary to consider whether the conclusion to use the Written Representation procedure was “unreasonable or irrational or otherwise unfair?” per Wyn Williams J in Westerleigh.

The Claimants had set out in their letter dated 27 August 2024 and in the Enforcement Notice Appeal form that “… Need, the location of the site and landscape/character considerations and the Gypsy/Traveller status and personal circumstances of the occupants” would require cross examination. In the signed Statement of Common Ground dated 22 April 2025, need and status and personal circumstances were accepted – Tewkesbury BC acknowledged their inability to demonstrate a 5 year supply of gypsy and traveller pitches and that there was therefore a “demonstrable Unmet Need” and that the Claimants were members of the Gypsy and Traveller community. It was further agreed in the Statement of Common Ground that the location of the site was on the Green Belt.

Further it was accepted in the Statement of Common Ground that the development was acceptable in flood risk and drainage terms and environmental health terms, subject to appropriately worded conditions.

The landscape/character considerations could be easily understood from the information submitted, including the Landscape and Visual Impact Assessment submitted the Claimants, and the Inspector’s unaccompanied site visit.

The issue that the Claimants focus upon is the issue with respect to the splay lines, contending that the Inspector ought to have considered the potential of the Claimants obtaining an easement over neighbouring property for the purpose of creating splay lines. The issue of Highways and the splay lines will be dealt with in detail below, but these did not require the procedure to be reversed from Written Representations to a public inquiry. This was an issue that could properly be dealt with in the Written Representation procedure and there was no irrational decision making.

The challenge to the decision to deal with the appeals by way of Written Representations therefore fails, both because a challenge should have been by way of a judicial review claim when the decision was made and further because there was nothing irrational in the Wednesbury sense to the decision made.

The agreed conditions, should permission be granted, provided that no further development shall take place until a plan demonstrating splays from the site access road onto Kayte Lane of a certain size shall be submitted to and approved in writing. It was for the Claimants to put forward the evidence to the Inspector that there could be appropriate splays to satisfy the highway concerns. It remained an area of dispute between the parties as whether the development “has safe and satisfactory vehicular and pedestrian access to the surrounding principal highway network.”

The issue of highway safety was one of the main issues in the planning appeal. In the Decision, the Inspector set out his determination in paragraphs 32 through to 37. In summary, the Inspector set out that the Site is served by an existing but modified vehicular access from Kayte Lane and that the Claimants had submitted a Highways Technical Note (“HTN”) that following a speed survey at the point of access a visibility splay of 55.40 metres was required to the north and a visibility splay of 54.30 metres was required. The visibility to the north could be achieved but to the south the visibility was impinged on by the presence of trees within the roadside. The Claimants contended that there would remain adequate visibility of oncoming vehicles. The Inspector concluded that it was not appropriate to use a planning condition to secure the visibility in this instance.

The Inspector noted that the splay to the south was over part of land that lies alongside the road and that a large swathe of roadside vegetation had been removed:

The Inspector referred to the Claimants’ HTN relying on a speed survey for its derivation of the required visibility splays, noting 85th percentile speeds of 35.3 miles per hour for northbound traffic and 35.8 mph for southbound traffic. Tewkesbury BC raised concerns about the methodology used and, for the reasons he set out, the Inspector concluded that “it is likely that the vehicle speed when approaching the site would be in excess of the measured 85th percentile speed.” He also recorded concern that the speed survey measured speeds in excess of the 40 mph speed limit with speeds sometimes in excess of 50 mph.

The Inspector was referred to a previous appeal decision where an Inspector considered that despite a substandard provision of visibility that an appeal should be allowed, but he considered that as that was for two pitches and this development was for eleven pitches and as such would involve a considerably higher number of vehicle movements onto and off the site the previous appeal decision was not directly comparable and “does little to persuade me that this development would be acceptable from a highway safety point of view.” He found that the development results in substantial harm to highway safety.

The Claimants focus on the fact that the evidence from Highways that the underlying speed survey relied upon by the Claimants was unreliable because of the placing of the speed counter was submitted after the Claimants’ addendum statement and it is submitted that the Inspector was obliged to go back to the Claimants to seek further comment on the new evidence. The Claimants also rely upon the duty arising from section 149 of the Equality Act 2010 and the policy for traveller sites which provides that:

and paragraph 56 of the NPPF which sets out that:

together with the Planning Practice Guidance (“PPG”) which provides that:

Para 009 of the PPG on the use of planning conditions provides:

The Claimants have filed a witness statement dated 30 October 2025 from Mr Coughtrie stating that: “I am instructed by Mr John Norris an appellant that had they been asked they would have taken up discussions regarding the splay lines with the landowner”. This evidence was not before the Inspector and it does not, in any event, give any assurance that the Claimants could in fact obtain any type of agreement from the landowner that they would be able to obtain an agreement to have splay lines over that neighbouring landowner’s land. In fact, the Addendum Statement dated January 2025, the Claimants referred to those who had carried out work on the land as “parties unknown” and the evidence provided after the Decision was reached, did not indicate that the landowner had been approached or the landowner’s views obtained.

Contrary to the submissions made in court on behalf of the Claimants that the Inspector did not have an understanding of easements, this was simply a failure on the part of the Claimants to put before the Inspector the material upon which they sought to rely (if there was such material) in order that the Inspector could reach conclusions they contend he should have reached. It was not incumbent upon the Inspector to make further inquiries of the Claimants in circumstances where the evidence relied upon by Tewkesbury BC was set out in a statement of case from RCA Regeneration Limited dated 27 November 2024. Under the heading – “Whether a safe and suitable access can be provided” it was set out “2.67 Whilst further information was provided by the Appellants after the appeal was submitted, the Highways Authority have reviewed this and remain of the view that the required visibility splays cannot be achieved within the land owned by the Appellants or within the public highway.” In their Addendum Statement of January 2025, the Claimants put forward their evidence. It is not correct for the Claimants to submit that they were in some way taken by surprise about the significance of highways or that they were not aware that visibility splays were an issue. It is set out in their own Addendum Statement.

The Inspector was entitled in this appeal, as in any other appeal, to proceed on the basis that the parties had put forward the evidence they wished him to see in order to be able to come to his planning decision. As set out by HHJ Jarman KC, sitting as a Judge of the High Court, in Swindon BC v SSLUHC [2023] EWHC 1627 (Admin) “Inspectors are entitled to reach their decision based on the evidence before them.” In West v First Secretary of State [2005] EWHC 729 (Admin), Richards J. (as he then was) set out that an inspector has the power to make further inquiry of the parties. In reaching his decision on the basis of the inquisitorial burden, and subjecting the material before him to rigorous examination, “There will be exceptional cases where, on the particular facts, fairness requires the inspector to do something more, for example by requesting further information or by departing from the written procedure and holding an oral hearing”. In my judgment this is not such a case. There is nothing in the facts of this case that made it unfair for the Inspector to proceed on the basis of the material before him. The issue about highway safety and the splay lines was a central issue that was well known to both parties, including the Claimants’ representatives. They had referred to the issues in the lengthy addendum statement compiled by WS Planning & Architecture on behalf of the Claimants. It was not something that was suddenly “sprung” on the Claimants where it could be said that, particularly taking into account the concerns that had been raised by their agent about “the Claimants ability to follow proceedings given issues with reading and writing”, they were not aware of the significance or how to deal with it.

As was accepted during submissions, “the appellant had taken its eye off the ball”. Tewkesbury BC queried the methodology behind the evidence relied upon by the Claimants with respect to their speed measurements and the Claimants complain that they did not have the opportunity to respond to that criticism. However, it is very clear from paragraphs 32 and 33 of his Decision letter that the Inspector was using the distances put forward by the Claimants and that his concern was with respect to the land ownership for the splay to the south. He did not say that it was impossible for there to be a condition on land not within the ownership of the Claimants. He was simply relying on the evidence that had been put before him and he came to a planning decision that was entirely rational that on the facts of the case before him that it was not appropriate to use a planning condition to secure the visibility. There was no reason for him to make further inquiries of the Claimants. He had undertaken a site visit and had seen the situation “on the ground”.

The challenge on this basis is unarguable.

In summary, the Claimants contentions are that:

As is to be expected, I have considered with care the arguments raised on behalf of the Claimants with respect to their Article 6 and 8 rights and with respect to whether there has been a breach of the public sector equality duty (PSED). I do not find that there has been any breach.

As I have already set out in this judgment, the written representations procedure was entirely appropriate and there was no requirement to either seek further information or to restore this matter to a public inquiry. With respect to the imposition of a condition with respect to splay lines and whether the proposal could have been saved by the imposition of a condition, the Inspector considered condition 12 and concluded, on the basis of the evidence before him, including the unaccompanied site visit, that it was not appropriate to use a planning condition to secure visibility. That was for the reasons set out a rational conclusion to reach and neither Hann v SSLGTR [2003] 507 (Admin) or Ludlam v SSBIS [2005] EWCA Civ 824 assist. He did not need to make further inquiries, and consequently was under no obligation to reinstate the inquiry or direct that there be a specific hearing to deal with the speed point. The Claimants’ Article 6 rights have not been interfered with. They had full consideration of their case within the written representations procedure. A procedure agreed to by the Claimants.

With respect to the alleged breach of Article 8, it is clear from the Decision itself that the Inspector was “conscious that in dismissing this appeal there would be interference with the appellants’ rights under Article 8 of the European Convention on Human Rights, as it would deny them the opportunity to establish a home on this site.” He concluded that the inference was proportionate “given the public aim of preventing harm to the public as well as the site occupants from the severe risk to highway safety, as well and protecting the countryside and biodiversity from harm.”

The Claimants submit that there is a strong public interest in allowing the Claimants to remain on the site and not to be compelled to leave with roadside living. Reliance is placed upon Buckland v United Kingdom [2013] HLR 2, 24 where it is set out in paragraph 64 that the procedural safeguards available are especially material when determining whether the process leading to measures of interference was fair. In this case I am satisfied that the process was fair and that the interference to the Claimants’ rights was in accordance with the law and in pursuance of a legitimate aim. The Claimants were able to put forward any evidence that they wished to put before the Inspector. The complaint that they were in some way prohibited from doing so does not withstand scrutiny and, even after the decision, the additional statement provided on behalf of the Claimants does not provide the relevant evidence.

Finally, with respect to the PSED, pursuant to the provisions of section 149 of the Equality Act 2010, it is clear from the Decision that the Inspector was both aware of his duty and acted in accordance with that duty.

The challenge brought by the Claimants on alleged breaches of various rights is unarguable and the applications made pursuant to both s.288 and s.289 of the TCPA 1990 must fail.

With respect to costs, the First Defendant seeks it costs in the total sum of £12,751.50. I have not heard submissions with respect to those costs, and I would be grateful if a short note regarding those costs be provided by close of business on Tuesday 5 May 2026 with any response by close of business on Wednesday 6 May 2026. I will aim to have this case formally handed down at 2pm on Wednesday 6 May 2026 but if any of these dates cause difficulties then I would be grateful if counsel could inform me of the same.