COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMINISTRATIVE COURT
MR JUSTICE MITTING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE WILSON
| WYCHAVON DISTRICT COUNCIL
| -and –
|(1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT
|(2) KATHLEEN BUTLER
(3) LEONARD BUTLER
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Charles George QC & Stephen Cottle (instructed by Community Law Partnership) for the Defendants/Appellants
The Secretary of State was not represented.
Hearing date : 4th June, 2008
Crown Copyright ©
Carnwath LJ :
"… 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 . . . "
"A new circular is necessary because evidence shows that the advice set out in Circular 1/94 has failed to deliver adequate sites for gypsies and travellers in many areas of England over the last 10 years. Since the issue of Circular 1/94, and the repeal of local authorities' duty to provide gypsy and traveller sites there have been more applications for private gypsy and traveller sites, but this has not resulted in the necessary increase in provision." (para 3)
"(b) to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular;
(c) to increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission in order to address under-provision over the next 3 - 5 years;
(i) to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to."
"Advice on the use of temporary permissions is contained in paragraphs 108-113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller sites provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.
Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site."
"There is a general presumption against inappropriate development within Green Belts. New gypsy and traveller sites in the Green Belt are normally inappropriate development, as defined in Planning Policy Guidance 2: Green Belts (PPG2). National planning policy on Green Belts applies equally to applications for planning permission from gypsies and travellers, and the settled population. Alternatives should be explored before Green Belt locations are considered. Pressure for development of sites on Green Belt land can usually be avoided if the local planning authority allocates sufficient sites elsewhere in its area, in its LDF, to meet identified need."
"Nevertheless, on a fair reading of the guidance, it cannot properly be concluded that the Secretary of State was advising local planning authorities that in cases of unmet need for gypsy sites, Green Belt considerations should be put aside. On the contrary, the guidance draws attention to the continuing validity of PPG2. Thus, it was rightly common ground in this case that the outcome of the appeal turned upon the proper application of PPG2, paragraphs 3.1 and 3.2."
The Inspector's decision
"Conclusion – Other Considerations
37. I have come to the views that, while not resulting in unacceptable patterns of travel, the proposed development would be inappropriate and cause unacceptable harm to the Green Belt and the surrounding area's character and appearance. The Green Belt harm, in particular, is a matter to which substantial weight should be given.
38. Of the other considerations put forward by the appellants, I consider that the cost of unauthorised encampments, the ability in general to address concerns by conditions and the treatment of Circular 01/2006 are matters which are neither exceptional nor out of the ordinary. The conflict of Policy COM6 with national guidance is a neutral factor.
39. The need for more gypsy sites and employment needs are matters to which some weight should be attached, but the former is not unusual and the latter can carry little weight in view of the enforcement breach. Worthy of greater weight are the education and health needs, for which a settled base would be beneficial, although these are not exceptionally serious and they do not point only to a site in the Green Belt. On the other hand, and despite the occupation of the site after enforcement action had been initiated, significant weight needs to be attached to the lack of alternative sites – no place has been identified for the appellants to move to now or in the near future.
40. The appellants have not claimed these other considerations individually outweigh the harm to the Green Belt and it is my view that even in combination, when balanced against the substantial Green Belt and other harm I have identified, the considerations do not clearly outweigh the harm. They do not, therefore, amount to the very special circumstance necessary to justify inappropriate development and a permanent permission would not be appropriate.
41. Dismissal of the appeal would interfere with the family's rights to respect for their private and family life and their home (Article 8 of the European Convention on Human Rights). The appellants acknowledge that moving on the land in breach of an enforcement notice weakens their rights and I consider the interference with these rights would be justified when weighed against the wider public interest of avoiding harm to the Green Belt and the area's character and appearance.
42. However, bearing in mind the approach offered by Circular 01/2006…, there is a particular, time-limited factor: the forthcoming assessment of the need for gypsy sites, regionally and locally, and the Council's intention to address the matter in a joint Core Strategy, when it expects to allocate sites. A temporary permission would enable the GTAA to be completed and allow additional sites to be made available, while giving the appellants somewhere to live and continue to seek an acceptable alternative. Bearing in mind also the undisputed need for gypsy sites generally and, particularly, the lack of any current alternative site, I consider that these matters, when taken together, clearly outweigh the Green Belt and other harm.
43. My overall conclusion, therefore, is that these concerns combine to become sufficient to constitute the very special circumstances necessary to justify a temporary planning permission. Nevertheless, as Circular 01/2006 points out, such permission should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. I appreciate the restriction would itself interfere with the family's human rights but, weighed against the legitimate aims of protecting the Green Belt and the area's character and appearance, I consider temporary permission would not have a disproportionate effect on the appellants."
The judge's reasoning
"The combined effect of paragraphs 3.1 and 3.2 is that, in order to justify inappropriate development in the Green Belt, (a) there must be circumstances which can reasonably be described not merely as special but as very special, and (b) the harm to the Green Belt by reason of inappropriateness and any other harm must be clearly outweighed by other considerations. Those other considerations must be capable of being reasonably described as very special circumstances. If they are capable of being so described, whether they are very special in the context of the particular case will be a matter for the decision-maker's judgment."
Mitting J accepted that formulation as "plainly correct".
"… in planning, as in ordinary life, a number of ordinary factors may when combined together result in something very special. Whether any particular combination amounts to very special circumstances for the purposes of PPG2 will be a matter for the planning judgment of the decision-taker."
He did not accept, however, that anything in the later judgment indicated a departure by Sullivan J from the two-stage test as stated previously.
"He decided that because the considerations which favoured the grant of temporary permission outweighed the harm by inappropriateness and by any other reason thereby caused, so the circumstances were very special. I have no doubt that that approach was wrong in law." (para 23)
"It is therefore necessary to ask whether the factors identified by the Planning Inspector in paragraph 42 were capable of amounting to very special circumstances. I am bound to say, I do not see how they can be. First, the forthcoming assessment of the need for gypsy sites, regionally and locally, even coupled with this Council's intention to address the matter, is not a special circumstance, let alone a very special circumstance. It is one that will be commonplace in local planning authorities up and down the country. The fact that the local Council intends to address them in a joint Core Strategy and expects to allocate the sites is clearly not a special circumstance. It is the local planning authority fulfilling its obligation. Secondly, the undisputed need for gypsy sites generally cannot amount to a very special circumstance. There is a national need for gypsy sites. This local planning authority's district is no different from the picture across the country as a whole. Thirdly, the lack of any current alternative site is the closest factor identified as a very special circumstance. Mr Cottle, counsel for Mr and Mrs Butler, submits that this is shorthand for a wider basket of considerations which would include the fact that Mr and Mrs Butler are of local origin, that they have children, one of whom at least goes to a local school, and the remainder of the considerations discussed by the Inspector when considering their application for permanent planning permission. I am prepared to accord to his brief reasoning in this respect something of that breadth. But to say in relation to this family that for those commonplace reasons that factor amounts to a very special factor, in my judgment, deprives the phrase of any real meaning. It is a commonplace not a very special factor."
"Following Sullivan J's approach in the Basildon case, one must step back and ask whether the three factors taken together are capable of amounting to very special circumstances. In my view, they are not. They are three commonplace factors. Although a collection of ordinary and unexceptional factors can, when taken together, amount to very special circumstances, the aggregation of three commonplace factors such as these, in my judgment, cannot." (paras 24-25, emphasis added)
The issues in the appeal
i) Was Mitting J correct to hold that the inspector misinterpreted paragraph 3.2 of the Green Belt Guidance?
ii) If not, was the inspector's reasoning in any event perverse or otherwise open to challenge in law?
iii) (Under a respondent's notice) In assessing the applicants' prospects of finding an alternative site, did the Inspector leave out of account a material consideration, namely the more flexible planning policy now applicable in rural areas beyond the Green Belt?
It is to the first point that the argument has been principally directed.
"well established in the case-law that whether factors amount to special circumstances is a matter of planning judgment for the decision maker… (The judge) went too far in saying that certain factors such as the need for gypsy sites and the lack of alternative sites are never capable of amounting to very special circumstances".
(i) Interpretation of Green Belt guidance
"…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 reaching 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…" (para 96, emphasis added)
The special position of gypsies in this respect is reflected in the 2006 guidance.
"There is no question …that what they have done amounts to inappropriate development in the Green Belt so that planning permission can only be granted if they can show that there are very special circumstances. It is accepted and the planning and enforcement decisions confirm that the individual circumstances of the claimants are capable of amounting to very special circumstances provided that those circumstances clearly outweigh the damage done to the Green Belt by the development and any other harm." (para 14)
"Given that inappropriate development is by definition harmful, the proper approach was whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt was clearly outweighed by the benefit to the appellant's family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy" (original emphases).
This passage, rightly in my view, treats the two questions as linked, but starts from the premise that inappropriate development is "by definition harmful" to the purposes of the Green Belt.
"The Gypsy did not rely on "accommodation need" (having "left a secure pitch": paras 11 and 16), so that the only balancing factor was "the children's educational needs" (described in paras 12) and of which Treasury Counsel "does not suggest that there is anything out of the ordinary" and which Sullivan J described as "entirely normal" (para 65). The decision of the Secretary of State on the facts was perverse, as recognized by Sullivan J at para 67:
"it is impossible to see how these perfectly ordinary educational needs of two children can reasonably be described as special circumstances, let alone very special circumstances for the purposes of para.3.1 of PPG2."
"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. . ."
He referred with approval to Sullivan J's own observation in the Doncaster case  JPL 1509 that:
"… it is important that the need to establish very special circumstances is not watered down. Clear and cogent analysis is required."
"What was required of [the Inspector] was above all a value judgment whether the hardship which would result for dispossessing Mrs Porter from her land was sufficiently extreme and unusual to justify the environmental harm occasioned by her remaining there as long as she needed…
… To my mind the inspector's reasoning was both clear and ample. Here was a woman of 62 in serious ill-health with a rooted fear of being put into permanent housing, with no alternative site to go to, whose displacement would imperil her continuing medical treatment and probably worsen her condition. All of this was fully explained in the decision letter (and, of course, described more fully still in the reports produced in evidence at the public inquiry). Should she be dispossessed from the site onto the roadside or should she be granted a limited personal planning permission? The inspector thought the latter, taking the view that Mrs Porter's 'very special circumstances' 'clearly outweighed' the environmental harm involved. Not everyone would have reached the same decision but there is no mystery as to what moved the inspector." (paras 38-41)
He distinguished Sullivan J's reasoning in the Doncaster case (see above), where:
"The personal circumstances [relied on as very special circumstances] …consisted of no more than the gipsy's concern that his two small children's education should not be disrupted by a move. Small wonder that the inspector's grant of planning permission was regarded as perplexing to the point of perversity…" (para 42)
(ii) The inspector's application of the test
(iii) Alternative sites
"… the history of planning applications in the District shows how difficult it might be to gain planning permission even if the land were obtainable and, given the undisputed national and regional needs for sites, I have no indication that searching over a wide area would be more fruitful." (para 33)
"In this exchange Mr Green put to Mrs Heine that national advice on locating caravan sites in the open countryside had changed, with reference to Circulars 01/2006 and 1/94. My recollection is that Mrs Heine accepted that this constituted a significant change."
"… Sites on the outskirts of built-up areas may be appropriate, provided that care is taken to avoid encroachment on the open countryside. Many sites may be found in rural or semi-rural settings, but care needs to be taken ensure consistency with agricultural and countryside policies…" (1/94 para 14).
"Sites on the outskirts of built-up areas may be appropriate. Sites may also be found in rural or semi-rural settings. Rural settings, where not subject to special planning constraints, are acceptable in principle…" (1/2006 para 54)
He submits that the latter reference to rural sites being "acceptable in principle" represents a significant shift of emphasis in Departmental policy.
"Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently." (AH(Sudan) v Secretary of State  UKHL 49 para 30, per Baroness Hale).
In my view the same reticence should apply in considering the decisions of inspectors on issues of planning judgement (as indeed the South Bucks case exemplifies). Responsibility for providing consistent policy guidance lies with the Secretary of State. If the present guidance is insufficiently clear or complete, it is to her that complaints should be addressed.
"Factual judgments of this kind are often not easy, but they are not made easier or better by excessive legal or linguistic analysis. It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case… The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law… Nor does it create any precedent, so as to limit the Secretary of State's right to argue for a more restrictive approach on a similar case in the future…" (Mukarkar v Secretary of State  EWCA Civ 1045)
Lord Justice Wilson :
Master of the Rolls :