QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ANTHONY DOHERTY||(APPELLANT)|
|THE FIRST SECRETARY OF STATE|
|HERTSMERE BOROUGH COUNCIL||(RESPONDENT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR T MOULD appeared on behalf of the FIRST RESPONDENT
MR G JONES appeared on behalf of the SECOND RESPONDENT
Crown Copyright ©
"12. The Secretary of State has therefore considered whether there are any countervailing material considerations which would outweigh the presumption against inappropriate development in the Green Belt, the harm to the appearance and character of the countryside and the harm arising on highway safety and sustainability grounds. In doing so the Secretary of State has taken full account of the grounds which were advanced in support of your client's appeal. In his consideration of whether there is a general need for Gypsy sites in Hertfordshire and in particular Hertsmere Borough the Secretary of State finds that no material changes have arisen since his decision of 25th April 2002 on the 'Pylon Site' that would clearly demonstrate the existence of a robust quantitative assessment of need in compliance with paragraph 12 of Circular 1/94. He therefore agrees with the Inspector that only limited weight should be accorded to Review Local Plan Policy S9 in consideration of this present appeal.
13. In his decision letter of 25th April 2002 ('the Pylon Site') the Secretary of State accepted that there was a substantial shortage of lawful Gypsy sites in Hertfordshire in general and Hertsmere Borough in particular. Furthermore the Secretary of State accepts that the Council is in the most difficult position as the entire borough outside of the built up areas, like other rural parts of South Hertfordshire, is in the Green Belt and Circular 1/94 advises that Green Belt land should not be allowed for Gypsy sites in development plans. However the Secretary of State takes the view that there remains a general need for further Gypsy accommodation notwithstanding the additional encampments at the Pylon Site, and he therefore accords this need some weight in determining your client's appeal.
14. The Secretary of State has considered the personal needs of the appellant and his family as set out in paragraphs 212 to 223 of the Inspector's report. The appellant and his family have no clearly identified connections or affinity with the locality, although since moving onto the land his children attend schools in Borehamwood and the family is registered with a local doctor. The Secretary of State agrees with the Inspector that the educational advantages gained by the appellant's children attending their existing schools are important factors. However no evidence has been submitted to suggest that the specialist health for Gypsy children as provided in their present schools would not be available elsewhere in the county nor is there any evidence to indicate that places would not be available in schools elsewhere. Furthermore, the Secretary of State agrees with the Inspector that there would be no certainty that your client would not find another site within a reasonable distance of the same schools and the provision of taxis by the County Council where necessary to take children to school gives a further measure of flexibility in meeting the children's educational needs. The Secretary of State therefore shares the Inspector's view that the educational needs in this case do not add significant weight to your client's case".
15. Regarding your client and his family's health needs, there is no evidence to suggest that the present arrangements could not continue or similar alternative arrangements made with another doctor. The Secretary of State therefore accords these grounds little weight in determining your client's appeal.
16. The Secretary of State has carefully considered the weight to be given to the difficulties of finding alternative accommodation for your client and his family. Prior to purchase of the appeal site, there is no clear evidence that your client sought out alternative sites although efforts have since been made to search for other sites. The Secretary of State recognises the high cost of urban land in this locality but the financial evidence is inconclusive as to your client's ability to afford accommodation either now or in two years' time and little reference has been made by the inquiry parties to the possibility of renting land for a temporary period to allow your client to search for permanent accommodation. Paragraph 20 of Circular 1/94 encourages Gypsies to consult local planning authorities prior to purchasing land for encampments and in this case there is no evidence that your client or his uncle sought to discuss the merits of the appeal site or any other with the Council before purchase. If this consultation had been carried out, the planning history of the site would have been made known to your client and would have provided a good indication of the suitability or otherwise of the appeal site in meeting his needs. In addition, although your client argues that the lack of proper quantitative assessment of need means that there would be little likelihood that guidance would be available from the development plan, the Secretary of State shares the Inspector's view in paragraph 218 of his report that the weight attributed to your client's case on these grounds would be seriously undermined by his limited search for accommodation. He agrees with the Inspector that a search might identify other sites that might meet your client's need and in the Secretary of State's view it has not been demonstrated sufficiently that the likelihood of finding other suitable sites for accommodation would be remote, as no systematic search over a widespread area, including land outside the Green Belt, has been carried out.
17. The Secretary of State has therefore balanced the need for your client and his family to have a settled residential base so that their educational and health care requirements can be met against the continuing harm the appeal scheme causes to the Green Belt, the risk to highway safety arising from the use of the access, the harm to the visible amenity of the surrounding countryside and the conflict with national and local policies to direct development to more sustainable locations. He concludes, in agreement with the Inspector, that the disadvantages arising from use of the site, which are well founded and substantial, are not outweighed by the collective weight of the need for further Gypsy accommodation and the personal needs of your client and his family. Furthermore the weight attributable to the difficulties of finding alternative accommodation are countered by your client's decision to move his family to the appeal site after the enforcement notice was issued and by his limited search for accommodation. Accordingly, the Secretary of State has not found that the arguments put forward on behalf of your client amount to the very special circumstances necessary to clearly outweigh the harm arising by reason of inappropriateness together with the other harm identified in paragraphs 10, 11 and 12 above".
"The educational advantages gained by the five children that attend schools in Borehamwood are important factors. There is a danger that removal of the children from their existing schools might cause them upset and apprehension and more so than for children from more settled background. In appeals in Basildon District, similar considerations provided compelling reasons, set against strong environmental objections, leading to a permission in that case; conversely, in the Doncaster case, such considerations did not carry such strength.
221. The appellant did not move to the appeal site because the children were already accommodated at schools in Borehamwood. The specialist assistance given to schools to cater for the needs of Gypsy children is not confined to these schools, but would be available throughout the county providing places were available to accommodate the children. There is no reason to believe that such specialist assistance would not be available elsewhere in the county or even that similar assistance might be available from other local educational authorities beyond. Nor is there evidence that would suggest place would not be available in schools elsewhere.
222. There would be no certainty that the appellant would not find another site within reasonable distance of the same schools. There is no fixed catchment area as such and the County Council arranges taxis where no suitable public transport exists. I believe this would provide the appellant with a further measure of flexibility. I do not believe the educational needs in this case would add significant weight to the appellant's case".