QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HUGHES||(CLAIMANT)|
|OFFICE OF THE DEPUTY PRIME MINISTER AND OTHERS||(DEFENDANT)|
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 (instructed by the Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT
Crown Copyright ©
"If after the close of an inquiry the Secretary of State --
(a) differs from the inspector on any matter of fact mentioned in or appearing to him to be material to a conclusion reached by the inspector; or
(b) takes into consideration any new evidence on a new matter of fact (not being a matter of Government policy)
and is for that reason disposed to disagree with a recommendation made by the Inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reason for it: and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of Government policy) of asking for the reopening of the inquiry."
That rule is one which is there in order to ensure that the whole procedure is fair and that no finding based on new evidence or which is contrary to a finding made by an Inspector is allowed to affect the decision of the Secretary of State without the appellants being given an opportunity to deal with it. Of course, it would work the other way round if the new material was a matter which adversely affected the local planning authority which had, in a given case, refused planning permission.
"In the light of his conclusion at paragraph 16 above, in the Secretary of State's view the crux of his decision turns on whether there are very special circumstances which outweigh the harm caused to the green belt through inappropriateness, other specific harm and any other harm. These circumstances must be of sufficient weight to overcome the significant harm to the green belt. The Secretary of State has considered those circumstances raised by the appellants below."
He then went on to consider the various matters which were material in reaching the decision in question.
"From that analysis I conclude, first, that quite apart from any consideration of common humanity, the needs of these particular gypsy families were a material consideration because they had a need for this development in this location. Those personal circumstances entitle the Secretary of State to have regard to them as relevant to the decision he had to make in the public interest about the use of the land for the stationing of residential caravans. Their particular need for stability in the interest of the education of the younger children can also reasonably be seen as an aspect of the wider land use interest in the provision gypsy sites, which interest includes the need for stable educational opportunities. There is also a public interest in the planning system providing stable education opportunities for gypsy families, including these gypsy families."
Lord Bingham continued:
"Thus the Secretary of State was entitled to have regard to the personal circumstances of the gypsies as he did in the case of Mr Berry and Mrs Porter. When application is made to the court under section 187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and nonetheless resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests. It is, however, ultimately for the court to decide whether the remedy sought is just and proportionate in all the circumstances, and there is force in the observation attributed to Vaclav Havel, no doubt informed by the dire experience of central Europe: 'The gypsies are a litmus test not of democracy but of civil society'."
9. Porter was an injunction case. Those observations of Lord Bingham are in the context of an application for an injunction. In fact, in this case the local planning authority applied for an injunction and that application has been, as I understand it, adjourned, no doubt pending consideration of my decision on this appeal. Obviously, if I decide in favour of the appellants and the matter has to go back for reconsideration by the Secretary of State, it will be pointless to pursue the injunction proceedings until a decision is finally reached. Equally, if I decide against the appellants then no doubt the local planning authority will consider whether to pursue the injunction proceedings in the light of any observations I may see fit to make.
"The Secretary of State agrees with the Inspector that the appellants have regularly resided in or resorted to the area but there are no readily available alternative authorised sites and, in the event of this appeal being dismissed, the appellants will be faced with a return to roadside camping."
That reflects and applies and approves what the Inspector had said in the first few sentences of paragraph 124 of his report which was in largely the same terms. But the Inspector continued -- and I will come back to this when dealing with the education of the children -- that the return to travelling and roadside camping would severely hamper the possibility for continued education for the various children, and that would be, in the Inspector's view, a regrettable consequence and a substantial and weighty material consideration. Going back to the decision letter, at paragraph 24 the Secretary of State continues:
"He notes that there is a waiting list for County Council owned sites. However, he also notes that the appellants have not sought being placed on the waiting list for the purpose of sites. [He refers in that regard to the group evidence and the appendices to it of the Council witness]. The Secretary of State is not able to conclude on the basis of the available evidence that the Inspector's view at paragraph 126 of his report that the appellants had been looking for a site for a considerable period is correct, although he acknowledges that they have made some searches for a site. However, he agrees with the Inspector's conclusion at paragraph 127 that there is a need for sites in the area, that the appellants have personal needs for the site, that they have no immediately available alternative site to go to, and that their aim is to achieve a settled base within their usual area of home. He gives these latter four factors considerable weight."
"I have included proofs of evidence with documents attached to this report, though it should be remembered that cross-examination in relation to the content of the proofs means that they cannot be wholly relied upon."
"First, although the Council policy has been drawn up in a manner which does not wholly follow the advice on the relevant circulars, I do not accept that this is prejudicial in the circumstances of South Bedfordshire in this case. The policy itself is realistic. Secondly, I am satisfied that there is a need for gypsy sites in the area generally, and this is verified by [previous findings]. The need is one which requires addressing in the short term. Thirdly, the appellants have particular need based on the fact that they would have no alternative site to go to. There are no available places on sites which are appropriate for their needs and it is not disputed that they would be forced to return to camping in further unauthorised locations if they had to leave the appeal site. Fourthly, their children's education, and to a lesser extent their healthcare, would be harmed by any outcome which resulted in a return to travelling from unauthorised site to unauthorised site. There are a number of children who would be so affected and it is my assessment that this matter should carry substantial weight. The disruption caused to the education of these children would be unwelcome and harmful to their futures. These last three material considerations, in my judgment, are sufficient to allow for the very special circumstances needed to outweigh the green belt and other harm identified earlier, especially as the harm for landscape to could be mitigated to a degree by planting. These conclusions would, in the normal course of the events, be sufficient to warrant the grant of a permanent planning permission."
He then went on to indicate that because there might well be some movement in the possibility of establishing acceptable alternative sites in the relatively near future because of expansions proposed and the likelihood of green belt boundaries being reviewed, he took the view that there should be a temporary permission personal to the appellants.
"(26) The Secretary of State agrees with the Inspector at paragraph 124 of his report that there is no readily available alternative authorised site if the appellants are required to leave this site, and this will lead to a return to travelling and roadside camping and the discontinuity of education. The Secretary of State gives this considerable weight. However, having regard to the legal obligations on the local education authority to make appropriate educational provision for children of school age resident in this area, including the children on the site, the Secretary of State is satisfied that appropriate education will be available to the children notwithstanding a refusal of planning permission and a lack of immediately available alternative sites. In the light of this, the Secretary of State considers that the harm to the children's continuity of education if they were required to leave the appeal site is not a very special circumstance of sufficient weight to overcome the harm caused by the development.
(27) In so concluding, the Secretary of State has had particular regard to the fact that on the available evidence the educational needs of the children at the Evergreen site not out of the ordinary. Only three of the six children were receiving any recognition for their educational needs and the evidence suggests that no special educational needs were being provided for any of the six, and that all of the children were making adequate progress. For all these reasons, the Secretary of State concludes that the educational needs of the children resident at the site do not amount to very special circumstances."
He disagrees with the Inspector that continuity of education would be so severely hampered by a move from the site as to amount to a very special circumstance.
"Should the Secretary of State not agree that very special circumstances exist in this case, then it is my view that interference with the appellants' home and private and family life would not be disproportionate in this case."