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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lee v Secretary of State for Communities and Local Government & Anor  EWCA Civ 558 (17 June 2016)
Cite as:  EWCA Civ 558
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ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN' BENCH DIVISION (Planning Court)
The Hon Mr Justice Lewis
In the matter of an application made under s.288
and an appeal under s.289 of the Town and Country Planning Act 1990
in respect of the decision of the first Respondent date 18 February 2014
B e f o r e :
LORD JUSTICE SIMON
LORD JUSTICE LINDBLOM
| Mrs Jane Lee
|(1) Secretary of State for Communities and Local Government
(2) Runnymede Borough Council
Mr Stephen Whale (instructed by Government Legal Department) for the 1st Respondent
Hearing date: 10 June 2016
Crown Copyright ©
Lord Justice Simon:
The retention and siting of one residential mobile home to be used to accommodate one Gypsy family together with one touring caravan, one timber shed and the existing hardstanding and gravel driveway and existing access to Lyne Lane.
As it is not in dispute that the appeal development amounts to inappropriate development of the Green Belt, I consider the main issue is whether there are any material considerations sufficient to clearly outweigh the harm to the Green Belt (GB) and any other harm, including to character and appearance, thereby justifying the proposal on the basis of very special circumstances.
Taking all these other considerations together, I find that very special circumstances exist to clearly outweigh the harm to the GB.
It is likely, therefore, that if the current appeals were to fail the occupants would move onto another unauthorised site, in all likelihood in the GB, with all the attendant problems this would bring, including to the overall detriment of [the Appellant's daughter's] health if she could no longer be seen by her current doctor and the children's continuing education if they had to move school. This would amount to interference with the family's rights under Article 8 of the Human Rights Act 1998. (Emphasis added).
The Secretary of State also agrees with the Inspector (IR33-34) that, should the appeals be dismissed, the likelihood is that the appellant's family would move to another unauthorised site to the detriment of the daughter's health and of the children's education should they need to move schools.
The Secretary of State has therefore gone on to carefully consider the balance of the needs of the proposed occupiers against the need to protect the GB … He considers that, even when combined with the personal circumstances of the proposed occupants and the needs of the children, the very special circumstances necessary to justify the development do not arise.
the [Secretary of State] had failed to take account of the fact that his inspector had concluded that if the Appellant's family were refused temporary planning permission then they would be likely to camp on unauthorised sites within the GB - with the result that similar (and perhaps) greater harm to that arising from their residential use of the appeal site would be caused to the GB.
23. I would attach particular importance, as did Mr George QC in his submissions on behalf of the claimant, to the judge's criticism of the inspector's failure to make any finding as to whether it was more likely than not that the claimant and her children would have to resort to roadside camping if temporary permission were refused. I agree with the judge that a finding on this issue went to the heart of the balancing exercise required and that it was not sufficient simply to treat it as 'possible' or as 'no certainty'.
24. If the family was likely to face a roadside existence in the event of refusal of temporary permission, it would involve a far more serious interference with their article 8 rights, especially through the impact on health and education, than if they were likely to obtain alternative accommodation. Thus the issue went to the core of the article 8 analysis. Moreover, the 'other material considerations' advanced by the claimant included 'the likely outcome of refusing planning permission including human rights considerations' (para 17 of the inspector's decision), which underlined the need for a finding on likelihood.
25. The question whether the family was likely to resort to a roadside existence was also important in relation to the 'harm' side of the balance. On the inspector's own finding, at para 31 of his decision, roadside camping would be likely to be equally harmful to the Green Belt and potentially more harmful to the countryside. Of course, the grant of temporary permission would still result in the harm identified by the inspector, and it may not be strictly accurate to describe that harm as being cancelled out or neutralised by the harm that would result from the refusal of temporary permission, but the overall balance would necessarily be affected if the harm resulting from the refusal of temporary permission would be equal to or greater than the harm resulting from the grant of such permission. The judge did not deal with the point in quite this way but it goes to support the conclusion she reached.
172. Against that, there is the impact on Mrs Lee and her family. There is the impact on their traditional way of life. There is the impact on the children which is a primary consideration. There is the impact on Mrs Lee's daughter. There is the fact that there is unlikely to be an alternative, suitable Gypsy site available for them. In assessing proportionality, therefore, I bear in mind that the effect on the family of refusing temporary planning permission will be that they are likely to have to move to another unauthorised site. In all the circumstances, of this case, however, the decision not to grant planning permission purses a legitimate, and highly important aim, and is proportionate to that aim. The decision in relation to Mrs Lee and her family is, in my judgment, compatible with Article 8 ECHR.
175. For completeness, I note that I have carefully considered all the points made by Mr Willers in the grounds of claim, his skeleton argument, and in oral submission. I have considered carefully all the material, and case law, drawn to my attention. That includes … the decision of the High Court and the Court of Appeal in Moore v Secretary of State for Communities and Local Government  EWCA Civ 1194 on which great reliance was placed. That decision turns on the facts of that case, as Richards L.J. notes in paragraph 1 of his judgment where he says that the issues in that appeal were fact-specific rather than of wider importance. The Defendant did not make the error in Mrs Lee's case … that the courts identified in Moore.
Lord Justice Lindblom
Lord Justice Jackson