England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE RICH QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th May 2003

Lord Justice Pill:

1. This is an appeal against the judgment of His Honour Judge Rich QC given on 17 September 2002 by which he dismissed an application by South Bucks District Council ("the Council") under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") seeking to quash a decision of the Secretary of State given by letter dated 19 February 2002. By a duly appointed Inspector, the Secretary of State had allowed an appeal against a decision of the Council on 5 September 2000 to refuse planning permission for the retention of a residential mobile home at Willow Tree Farm, Love Lane, Iver, Bucks, for the lifetime of the applicant Mrs Linda Porter. The permission was granted subject to conditions including a condition that the permission was personal to Mrs Porter.
2. The Secretary of State had agreed to submit to a judgment quashing his planning decision, on the ground that by his Inspector he had failed to deal with a principal issue raised, namely the precedent effect of the planning decision but the Inspector's decision to grant planning permission was successfully upheld by Mrs Porter before the judge.

The Inspector's decision

3. In his decision letter the Inspector described the appeal site and surroundings:

"The development the subject of this appeal consists of a mobile home providing a kitchen, living room, bedroom and bathroom. It has the appearance of a permanent dwelling with a pitched roof and chimney. It forms part of a cluster of buildings made up of stables, tack room and a barn: there is a yard area with some touring caravans on it and, to the west, is a field also owned by [Mrs Porter] and her husband. The appeal site is situated in the green belt [GB], very close to its eastern boundary with the village of Iver and within the Colne Valley Park."

4. The Inspector summarised the provisions of the statutory development plan. It consisted of the County Structure Plan and the Council's Local Plan adopted in March 1999. There is a general presumption against allowing inappropriate development in the green belt, reiterating national guidance in PPG 2. There is a specific policy which seeks to protect Colne Valley Park in terms of maintaining and enhancing its landscape, nature conservation and amenity value. A policy (H 14) in the local plan provides that proposals to establish or extend gypsy caravan sites will be permitted, subject to a number of criteria. These include that the site is located within the development areas excluded from the green belt.
5. The Inspector identified the main issue in the case:

"For [Mrs Porter] it was accepted that the appeal development constituted inappropriate development in green belt terms. The main issue is this case, therefore, is whether there are any very special circumstances why the appeal development should be permitted despite this."

6. At the local inquiry conducted by the Inspector, the Council did not dispute the gypsy status of Mrs Porter or her family "either in the ethnic or statutory sense". She has occupied the appeal site as a home for a considerable time, having purchased the land in 1985. The occupation has been unlawful in that it has been in breach of planning control.
7. The Inspector found that the Council had made "reasonable provision in the District for gypsy sites". Mrs Porter had only recently made an application for a pitch on such a site. The Inspector found that there were no vacancies at present and waiting lists were long. He concluded that "there is no alternative location available to Mrs Porter at present and there is unlikely to be one for a considerable time".
8. The Inspector found that Mrs Porter suffered from serious ill-health, chronic asthma, severe generalised arthritis and chronic urinary tract infection: She also has diabetes and high blood pressure. He accepted that displacing her and her husband from her home would make it difficult for her to continue with her medical treatment and the stress involved would probably make her condition worse.
9. Two previous appeal decisions concerning the site were mentioned by the Inspector as relevant. Enforcement notices relating to residential use of part of the site were upheld in 1994 and in 1998 an appeal against refusal of planning permission for retention of the mobile home and associated out-buildings on the site was dismissed.
10. The Inspector's conclusions were stated in these terms:

"12. I have considered whether there has been any material change in circumstances since these decisions, particularly that in 1998, that would lead me to a contrary view and I have concluded that there has been in two major respects. First, on the basis of the evidence before me, no alternative Council based sites are available at present whereas, at the time of the 1998 case there was some, albeit limited, spare capacity. Second, the evidence suggests that the Appellant's state of ill health has worsened considerably since the last appeal.

13. These changes in the situation since 1998 are sufficient for me to take a contrary view to that of the previous inspector. The status of [Mrs Porter] as a Gypsy, the lack of an alternative site for her to go to in the area and her chronic ill health constitute very special circumstances which are, in this case, sufficient to override national and statutory development GB policies"

The Inspector then added that he did not accept the view expressed on behalf of Mrs Porter "that the potency and cogency of policies in the local plan [H 14] … are an any way reduced by lack of local authority gypsy sites in South Buckinghamshire or by the difficulties presented by a preponderance of green belt land in the District to those seeking a site. The Local Plan is an up to date plan and, as such, is an interest of acknowledged importance where section 54A should normally apply."

11. The Inspector went on to hold that a personal condition would be justified in this case "because of the very special circumstances which centre to some extent on [Mrs Porter] herself." He also imposed a landscaping condition.

The Statute and planning policies

12. The relevant provisions of the development plan have been set out, by reference to the Inspector's findings, in paragraph 4 of this judgment. Section 54A of the 1990 Act provides:

"Where, in making any determination under the planning Acts, regard is to be had to the Development Plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

Considering the effect of that provision (in Scotland section 18A of the Town and Country Planning (Scotland) Act 1972), Lord Hope stated, in City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447,at p 1450:

"It is not in doubt that the purpose of the amendment introduced by section 18A was to enhance the status, in this exercise of judgment, of the Development Plan.

It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision taker. The development plan does not, even with the benefit of section 18A, have absolute authority. The planning authority is not obliged, to adopt Lord Guest's words in Simpson v Edinburgh Corporation, 1960 S.C. 313, 318 'slavishly to adhere to' it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up to date guidance as to the tests which must be satisfied, will continue, as before, to be a matter for the planning authority.

The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision taker. The function of the court is, as before, a limited one. All the court can do is review the decision, as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of section 18A was to increase the power of the court to intervene in decisions about planning control."

13. It is accepted that the policies in the development plan are consistent with and reinforced by national planning policies. Under the headings "Control over development" and "Presumptions against inappropriate development", paragraph 3 of PPG 2: Green Belts provides:

"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate.

3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.

3.3 … ."

The sub-paragraphs identified in 3.1 do not refer to gypsy sites but at Annex E guidance in relation to gypsy sites is set out. It had appeared in paragraph 3 of Circular 1/94:

"As a rule it will not be appropriate to make provision for gypsy sites in areas of open land where development is severely restricted, for example, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest, and other protected areas. Gypsy sites are not regarded as being among those uses of land which are normally appropriate in Green Belts. Green Belt land should not therefore be allocated for gypsy sites in development plans."

14. Circular 1/94, entitled "Gypsy Sites and Planning", provides "Revised guidance on planning control and gypsy caravan sites". Paragraph 22 provides:

"As with any other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. While gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies (see paragraphs 2, 13 and 14, above). The aim should always be to secure provision appropriate to gypsies' accommodation needs while protecting amenity."

15. The Inspector clearly acknowledged that "very special circumstances" would need to be present to "override" (the Inspector's word) both the general presumption against permitting the development in the Green Belt and the provisions of the development plan which "should normally apply". He concluded that the circumstances set out in paragraph 13 of his decision letter constituted very special circumstances.

The Council's submissions

16. For the Council Mr Straker QC submitted:

(a) the Inspector failed to take into account a material consideration, namely the character of Mrs Porter's occupation which was in breach of planning control;

(b) the Inspector failed to deal with a principal issue, namely one of the Council's reasons for refusing planning permission, which was the precedent if a grant was made;

(c) the Inspector's reliance on Mrs Porter's status as a gypsy was erroneous. Status alone cannot be a very special circumstance for present purposes. Mr Straker relied on the statement of Mr Jeremy Sullivan QC, sitting as a deputy high court judge in Woolhead v Secretary of State for the Environment and anr (1996) 71 P & CR (at p 424) that "gypsy status of itself would make no difference in green belt policy terms in the light of Circular 1/94".

17. Mr Straker relied on the decision in Woolhead and on the decision of the European Court of Human Rights in Chapman v United Kingdom (2001) 3 EHRR 18, a decision which was, we are told, referred to the Inspector.

Chapman

18. It was alleged, amongst other things, in Chapman, that there had been a breach of Article 8 of the European Convention on Human Rights. The refusal of planning permission and the enforcement measures violated the appellant's right to respect for private life, family life and home. The Court held, by a majority, that there had been no violation of Article 8.
19. In a comprehensive judgment, the majority considered the relevant domestic law and practice. They accepted that the enforcement of planning controls (paragraph 82) "pursue[s] the legitimate aim of protecting the 'rights of others' [within the meaning of Article 8(2)] through preservation of the environment". The Court acknowledged (paragraph 94) that its role was "a strictly supervisory one" and continued:

"95. Moreover, to accord to a gypsy who has unlawfully established a caravan site at a particular place different treatment from that accorded to non-gypsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under Article 14 of the Convention.

96. Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley [(1997) 23 EHRR 101] judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life."

20. Having stated that the provision of an adequate number of sites which gypsies find acceptable is something which has not been achieved, the Court continued:

"98. The Court does not, however, accept that the argument that, because statistically the number of gypsies is greater than the number of places available in authorised gypsy sites, the decision not to allow the applicant gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to protection on minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States.

99. It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision."

21. The Court defined the issue in the case and stated:

"101. In this connection, the legal and social context in which the impugned measure of expulsion was taken against the applicant is, however, a material factor.

102. Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.

103. A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.

104. The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned – his or her family requirements and financial resources – and, on the other hand, the rights of the local community to environmental protection. This is a task in respect of which it is appropriate to give a wide margin of appreciation to national authorities, who are evidently better placed to make the requisite assessment."

22. Finally when considering the application of principle to the facts of the case, the Court noted that there were "strong environmental reasons for the refusal of planning permission and that the applicant's personal circumstances had been taken into account in the decision making process".
23. The decision in Chapman potentially has broad implications and cannot in my judgment be ignored in deciding the present case. It bears upon the balance to be struck between the needs of the individual and the rights of the community. It undoubtedly makes the lawfulness of the occupation a factor to be considered by the planning authority in that context and it raises the issue of discrimination as between gypsies and non-gypsies when planning decisions are made.

The Respondent's Submissions

24. For Mrs Porter, Mr George QC and Mr Cottle submitted that the question of the lawfulness of the applicant's possession, raised in Chapman, does not arise in the present case. The Inspector was entitled to conclude that very special circumstances existed on an application of domestic law and Mrs Porter did not need to rely on Article 8. It is only when reliance is to be placed on Article 8, and the balance contemplated in Chapman needs to be struck, that the unlawfulness of the occupation may become a factor. Chapman was not mentioned in the skeleton argument submitted on behalf of Mrs Porter or in the subsequent written submissions.
25. It was also submitted that precedent is not a valid ground for refusing permission when "very special circumstances" are involved and that the term "gypsy status" was shorthand for cultural identity as a gypsy coupled with an aversion to conventional housing. Reliance was placed on the decision of Mr Stephen Richards, sitting as a deputy high court judge in Ayres v Secretary of State for the Environment and anr (1997) 74 P & CR 246, that the possibility of need amounting to very special circumstances cannot be ruled out as a matter of law.

Planning considerations

26. I do not accept the submission that the views expressed by the ECHR are irrelevant in the present circumstances. Domestic law must be tested by reference to Article 8 when planning decisions affecting homes are taken and Chapman raises questions, not only as to the relevance of the lawfulness of the occupation, but as to the relevance of the particular needs of the person concerned as compared with community rights and as to the possibility of discrimination as between gypsies and non-gypsies. It highlights what are material questions in domestic law. The Inspector's decision and the manner in which it is expressed and reasoned must be considered in the light of the judgment in Chapman.
27. In East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484, the issue was whether the use of a parcel of land constituted development for which planning permission was required. Lord Parker CJ stated, at p 459, that when considering whether there has been a change of use "what is really to be considered is the character of the use of the land, not the particular purpose of the particular occupier".
28. In Westminster Council v Great Portland Estates Plc [1985] AC 661, Lord Scarman stated that the principle of law expressed by Lord Parker was now well settled and Lord Parker's words extended beyond the issue of change of use: "they are accepted as a statement of general principle in the planning law". Lord Scarman, however, at p 670E added that "like all generalisations Lord Parker CJ's statement has its own limitations". Lord Scarman stated:

"Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it."

29. The principle expressed by Lord Parker CJ in East Barnet, qualified to the extent it was by Lord Scarman in Great Portland Estates, appears to me to be consistent with the principles expressed in Chapman. The emphasis on respect for the environmental rights of the community in Chapman reflects the principle that the character of the use of the land is central to planning decisions while the particular needs of the person concerned are acknowledged in both Great Portland Estates and Chapman, though in both cases in the context of community requirements. In Great Portland Estates that consideration extended beyond personal hardship to a more general planning purpose, the maintenance of industrial uses important to the functioning of the City of Westminster. In Chapman, consideration of personal circumstances was sufficiently comprehensive to have regard to the lawfulness of the possession (Paragraph 102) and to the relative position of gypsies and non-gypsies seeking planning permission for a dwelling (paragraph 95). A wide margin of appreciation is, following Chapman, to be given to national authorities in making the requisite assessment.
30. In Doncaster Metropolitan Borough Council v Secretary of State for Environment, Transport and the Regions [2002] EWHC 808 (Admin), Sullivan J considered the lawfulness of an Inspector's grant of planning permission for the retention of a mobile home and associated structures in the green belt. Having considered the decision letter in detail and the facts of that case, Sullivan J stated:

"It is important that the need to establish the existence of very special circumstances, not merely special circumstances in green belt cases, is not watered down. Even if it cannot be categorised as perverse, this decision is so perplexing on its face that it is of particular importance that the Inspector should be seen to have applied the correct test in green belt policy terms … . I am left in real doubt as to whether the policy in paragraph 3.2 of PPG 2 was correctly applied by the Inspector."

Conclusions

31. The very special circumstances found by the Inspector to be present are the personal hardships to Mrs Porter, if permission is refused. It is they which, in the language of paragraph 3.2 of PPG 2, are held "clearly to outweigh" the terms of inappropriate development. The hardship is that she is a very unwell gypsy without another pitch to occupy. I do not seek to diminish the hardship involved but, if a planning authority is to decide that such hardship constitutes not merely special, but very special, circumstances so as to override planning policies, a much fuller analysis, in the planning context, is in my judgment required. The Court was told by Mr George that inspectors are now encouraged to keep their decision letters short. That may be admirable but if what the Inspector recognised to be established planning policies are to be overridden, on grounds of the personal hardship to the applicant, a more comprehensive approach to the issue is required, as recognised in Chapman and Great Portland Estates, than was followed in this case. As Sullivan J stated in Doncaster, it is important that the need to establish very special circumstances is not watered down. Clear and cogent analysis is required.
32. Conspicuously absent from the decision letter is a consideration of the unlawfulness of the applicant's occupation, which has been in persistent breach of planning control. That of itself requires the decision to be quashed. I would venture to mention other considerations. One is that the applicant has not, until recently, applied for an alternative site though sites have, in the recent past, been available. This is not a case where, on the Inspector's findings, a lack of reasonable provision in the District of gypsy sites, can be relied on to justify a grant, nor is it relied on; current hardship is the only factor present. The relevance to the application of the applicant's status as a gypsy, as compared with a similar application by a non-gypsy, is also material, especially when the development concerned has the "appearance of a permanent dwelling with pitched roof and chimney". The Council were entitled to have the case for hardship considered in a broader context and with fuller reasoning. Merely to set out a list of hardships was not a sufficient way to deal with what was essentially a land use question. Even the personal circumstances, in themselves, are insufficiently dealt with by that listing.
33. I do not regard my approach as conflicting with the decision reached by Ouseley J in Basildon District Council v Secretary of State for the Environment, Transport and the Regions and others [2001] JPL 1184, cited by Mr George, save to note that, since the judgment was given, Chapman has highlighted considerations relevant to decision making. Ouseley J upheld a decision of the Secretary of State granting permission to locate caravans in the green belt where the Secretary of State had given considerable weight to the applicants' personal circumstances. The Secretary of State had, however, also given considerable weight to the overall need for more gypsy sites in the area and the fact that granting permission would contribute to meeting that need. There was, in Basildon, a full consideration of the circumstances, including the personal circumstances of the applicants. In Ayres, a decision to refuse planning permission was quashed for lack of findings of fact and clarity. The defect in the present decision is the lack of that consideration which the particular circumstances required.

Other grounds

34. I would not quash the decision on the ground that the Inspector had failed to deal with a reason given by the Council for refusing permission, that it would create a precedent. It is of the essence of "very special circumstances" that the applicant establishing them is in a very special category. Any other applicant would have to show that, in the circumstances of his particular case, he too was in a very special position. The "very special circumstances" case need not be defeated or advanced by precedent.
35. The underlying point, in relation to precedent and the present decision, is, however, a sound one, which the Secretary of State may have had in mind in agreeing that his decision could be quashed. If very special circumstances can be established simply by relying on a catalogue of hardship, the concept would be devalued and the planning system tend to be undermined. For reasons already given, a more comprehensive approach is required.
36. As presented, I do not accept Mr Straker's submission that improper reliance was based by the Inspector on the applicant's status as a gypsy, in itself. I consider that the inspector, and Mr Sullivan in Woolhead, were using the expression "gypsy status" to include the requirements which go with the status, accepting on that point the submission of Mr George. While I do not accept the way in which the point for the Council was labelled, however, it led to much the same attack, by reference to Chapman and other cases, upon the narrowness of the Inspector's approach and his failure to take a broader view of the circumstances, as has already been considered.

Result

37. For the reasons given I would allow this appeal and quash the Inspector's decision.

Lord Justice Mance:

38. I agree.

Lord Justice Longmore:

39. I also agree.
Order: Appeal allowed; appellant to have two-thirds of the costs after 08/05/2002; section 11 order; respondent's own liability deferred for consideration by costs judge; detailed assessment of 2^nd respondent's publicly funded costs permission to appeal refused. (Order does not form part of the approved judgment)