COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE RICH QC)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANCE
LORD JUSTICE LONGMORE
| South Bucks District Council
|- v -
|Secretary of State for Transport, Local Government and the Regions
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr C George QC and Mr S Cottle (instructed by The Community Law Partnership, Birmingham) for the 2nd Respondent
AS APPROVED BY THE COURT
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Lord Justice Pill:
The Inspector's decision
"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."
"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."
"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."
The Statute and planning policies
"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  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."
"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."
"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."
The Council's submissions
(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".
"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."
"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."
"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."
The Respondent's Submissions
"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."
"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."
Lord Justice Mance:
Lord Justice Longmore: