QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CHELMSFORD BOROUGH COUNCIL||(CLAIMANT)|
|THE FIRST SECRETARY OF STATE|
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 J LITTON (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
The decision letter
"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.
"Whether the proposal is inappropriate development in the Green Belt.
The impact of the proposal on the Green Belt.
Whether there are very special circumstances that would justify allowing inappropriate development."
"8. Paragraph 3.2 of PPG2 states that inappropriate development is by definition harmful to the Green Belt. However, the Secretary of State agrees with the inspector that the harm caused to the Green Belt by the proposal is limited because Meadow Lane is in a secluded location, there are limited views into the site, and the pattern of occupation is low density. He accepts the inspector's opinion that, as a result of the clearance of vegetation from the site, there are now vistas across the site and that the overall character of openness is not greatly reduced and is even increased in certain respects (paragraphs 58, 59 and 61). He agrees with the inspector's conclusion that there is scope to mitigate the damage caused by the use of a landscaping condition (paragraphs 60-61).
"9. The Secretary of State agrees with the inspector that the presence of gypsies is a recognised feature in this locality, and acknowledges that the Local Planning Authority is taking steps to regularise the position of a number of unauthorised pitches and to create three new authorised pitches in the lower part of Meadow Lane (paragraph 63). He does not consider that the presence of other gypsies in the location, or of other unauthorised uses, is any justification for a grant of planning permission to regularise another unauthorised use, but he does consider that the extent of such activities in the location supports his conclusion as to the limited nature of harm caused to the Green Belt in this location by this proposal (paragraphs 59 and 63).
"10. In the light of these conclusions, the Secretary of State considers the harm caused to the Green Belt as a result of this proposal to be limited."
"12. The Secretary of State agrees with the inspector that the educational needs of Mrs Draper's two school age children are a particularly significant factor (paragraph 66) and notes that they have settled well at the local primary school.
"13. If planning permission were refused and enforcement proceedings were to go ahead, Mrs Draper and her family could lose their home. However Mrs Draper and her family previously occupied the pitch on an authorised gypsy site and chose to leave that pitch to move to the appeal site in the knowledge that they would be reducing the security of their living arrangements. While the children's education is a significant factor, the family left a secure pitch from which the children could also have attended school. Nevertheless, the Secretary of State still attributes considerable weight to the children's educational needs at the appeal site (paragraph 66 and 67)."
"Mr Draper is 30 years old and Mrs Draper is 29. They have two daughters aged 7 and 6 who attend Runwell Community Primary School, which is within walking distance of the appeal site. The children are settled into school, as is made clear in a letter of support from the head teacher. Mrs Draper is expecting a third daughter in May. Both Mr and Mrs Draper have had very little formal education."
"66. The personal circumstances of the appellant and her immediate family are important material considerations in this case. In particular I place special significance on the schooling of Mrs Draper's children. She has two children of school age who have, it is reported, settled well in the local primary school which is within walking distance of Hillview.
67. Evaluating the weight to place on Human Rights considerations arising from a decision in this case that could result in Mrs Draper and her family losing their home, is particularly difficult in this instance. Mr and Mrs Draper were in possession of an authorised gypsy site before moving to Hillview. Their decision to occupy an unauthorised site was not because they have nowhere else to live and was made in the knowledge that they were reducing the security attached to their living arrangements. It is also not without significance that the Council's proposals for the main gypsy encampment at Meadow Lane involved the creation of three additional pitches. Notwithstanding these considerations, when applying the tests established by the Buckley case, I consider that the Human Rights dimension arising from Article 8 of the Convention on Human Rights is one that should be accorded significant weight."
"The Secretary of State agrees that there is a national and regional need for greater provision for gypsy sites. However he also agrees that the local level of gypsy site provision is extensive and increasing."
"The Secretary of State agrees with the inspector that although a decision in favour of the appellants would not make actions to enforce planning controls on neighbouring development easier, the general suitability of the area for gypsy occupation has been demonstrated (paragraphs 63 and 64). The nature of very special circumstances is that they are personal to the applicants in each case and do not create a precedent."
"16. The proposal constitutes inappropriate development in the Green Belt, and is therefore, by definition, harmful to the Green Belt. However, the Secretary of State has concluded that, because of the nature of the proposal and of the Green Belt in this location, the harm caused is limited and may be ameliorated by landscaping. The Secretary of State has balanced the material considerations put forward by the appellant to see if these amount to very special circumstances sufficient to clearly outweigh the limited harm caused to the Green Belt.
"17. The Secretary of State accepts that the appellant is a gypsy and that her children's educational needs are of special significance and places considerable weight on the children's educational needs. He also accepts that a refusal of permission could result in the appellant losing her home. He has concluded that the local level of gypsy site provision is extensive and increasing and therefore that arguments around wider need for gypsy sites are not special circumstances in this case (paragraph 55). The appellant chose to leave an authorised gypsy site to move to the appeal site and reduce the security of her living arrangements. The Secretary of State has not reached a conclusion on whether refusing this appeal would result in a violation of the appellant's rights under Article 8 of the European Convention on Human Rights because there will be no interference with the appellant's human rights. Nevertheless, the Secretary of State agrees with the inspector's conclusion in the final sentence of paragraph 70 and concludes that the weight that he, the Secretary of State, accords to the children's education needs is sufficient to clearly outweigh the limited harm caused to the Green Belt in this particular case."
"In my view the combination of the personal circumstances of the Appellant and her family, coupled with the limited harm from the development amounts to very special circumstances warranting an exception to the presumption against inappropriate development within the Green Belt in this case."
"(a) The residential use here permitted shall be carried on only by Mr and Mrs Draper and her dependants.
(b) The use here permitted shall be restricted to one mobile home, a utility block and a touring caravan . . .
(h) The use here permitted shall allow for a further four touring caravans (not owned by Mrs Draper, her husband or her dependants) to occupy the site. Any such touring caravans may not be stationed on the site for a period of more than 8 weeks in any 12 month period."
The claimant's submissions
"I attach great importance to continuity of education for the appellant's children. It would be unrealistic however to expect this to happen if the children had to move their home to a hostile environment or if, as is more likely in this case, the family took to the road. Continuity of education depends as much on a secure and peaceful home life as on continued proximity to the same school. I have come to the conclusion that, on balance, the benefit to the appellant's family and particularly to the children of allowing the appeals outweigh the limited harm caused to the openness and purpose of the Green Belt."
". . . applying the Policy set out in paragraph 3.2 of PPG2, the proper question for the inspector in the present case was whether the harm, by reason of inappropriateness, and the further (albeit limited) harm caused to the openness and purpose of the Green Belt were clearly outweighed by other considerations. Those other considerations were confined to 'the benefit to the appellant's family, and particularly the children, of allowing the appeals'. But it was only if those benefits not merely outweighed 'the limited harm caused to the openness and purpose of the green belt', but if they clearly outweighed the harm by reason of inappropriateness and, the further, albeit limited, harm caused to the openness and purpose of the Green Belt, that very special circumstances could be found in terms of paragraph 3.2 of PPG2."
"However, it is very important that full weight is given to the proposition that inappropriate development is by definition harmful to the Green Belt. That Policy is a reflection of the fact that there may be many applications in the Green Belt where the proposal would be relatively inconspicuous or have a limited effect on the openness of the Green Belt, but if such arguments were to be repeated the cumulative effect of many permissions would destroy the very qualities which underlie Green Belt designation. Hence the importance of recognising at all times that inappropriate development is by definition harmful, and then going on to consider whether there will be additional harm by reason of such matters as loss of openness and impact on the function of the Green Belt."
"70. When striking the all important balance, the inspector appears to have approached the matter on the basis that because there was only limited harm caused to the openness and purpose of the Green Belt, this could be outweighed by the children's educational needs, even though he did not suggest that these needs were in the least unusual. Such an approach to the Green Belt balancing exercise diminishes the weight which should properly be attributed to Green Belt policy. 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 (my emphasis).
"71. I am anxious that this decision should not be regarded as an attempt to force inspectors to use particular formulations of policy or particular phraseology. A decision letter has to be read as a whole and in a common sense way. Questions of planning judgment are for the inspector.
"72. Adopting a common sense approach to this decision letter read as a whole, the eventual conclusion is readily intelligible if there was no need to show very special circumstances and if the issue before the inspector was a simple balancing exercise between the educational needs of the appellant's children and some limited harm to the openness and purpose of the Green Belt. Even though there would appear to be nothing unusual about the children's educational needs, if they were to be balanced against some limited harm, one could understand how they might just outweigh, if not clearly outweigh, such harm.
"73. However, it is very difficult to see how those relatively unexceptional educational needs could reasonably be said to clearly outweigh, not merely the limited harm caused to the openness and purpose of the Green Belt, but the harm by reason of inappropriate development when coupled with the further limited harm to the openness and purpose of the Green Belt. How can the circumstance relied on by the inspector be reasonably described as 'special', let alone 'very special'? Reading the letter as a whole I am left in real doubt as to whether, in striking the Green Belt policy balance, the inspector applied the correct policy, as set out in PPG2.
"74. 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 . . ."
"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."
Ground (4) conclusions
"The nature of very special circumstances is that they are personal to the applicants in each case and do not create a precedent".
Ground (3) conclusions
Ground (1): conclusions
"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.
"13. Inside a Green Belt approval should not be given, except in very special circumstances, for the construction of new buildings or for the change of use of existing buildings for purposes other than agricultural and forestry, outdoor sports, cemeteries, institutions standing in extensive grounds, or other uses appropriate to a rural area."
"In assessing the extent and significance of the harm to the Green Belt and to rural character, there are a number of unusual features of the locality of the appeal site to take into account. There are limited views into the site, with the only public views being from Meadow Lane. Meadow Lane is in a very secluded and out of the way location. It is a vehicular cul de sac and though it continues northward as a bridle way, there is little evidence of its use by anyone other than those living or having business along the lane. The extent of activity down the lane is greater than one would expect for a Green Belt area with many activities, some authorised, others unauthorised. There are activities by gypsies and by non-gypsies in both categories."
"Overall, while recognising that the development that has taken place is inappropriate in terms of Green Belt policy and therefore harmful, my view is that this secluded appeal site is relatively insensitive to the type of change that has taken place. With the level of occupation on the site restricted to one family and a limited number of touring caravans, it would remain an element of openness. Moreover, through the imposition of an appropriate landscaping condition, the extent of the harm that has resulted from clearance of boundary vegetation and excessive deposit of hard surfacing could be reduced and the barren appearance of the site could be ameliorated."
Ground (2): the first defendant's submissions
Ground 2: conclusions
"Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree . . . "
"Very special circumstances to justify inappropriate development will exist if the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations."
"Inappropriate development will not be permitted unless the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations."
They did not do so. Every aspect of the policy in paragraphs 3.1 and 3.2 must be given its full force and effect.
"That, as (counsel for the appellant) recognised, was a brave submission. Of course the Secretary of State cannot give so much weight to a particular consideration as to render his decision irrational. But it is exceptionally difficult for a court to conclude that the weight given has failed to cross that low threshold of quality control. More importantly, in this case the Secretary of State did not rely exclusively on those personal circumstances as being the only factor justifying his view that very special circumstances existed, albeit it was the weight which he gave to them which caused him to differ from the inspector. He gave those circumstances significant weight, but his conclusion as to very special circumstances was based both on those circumstances and on the general need for more gypsy sites in the area, as, for example, paragraphs 14 and 19 of his decision letter made clear."