B e f o r e :
MR JUSTICE LEWIS
____________________
Between:
____________________
Mr Masters (instructed by Lester Morrill inc Davies Gore Lomax LLP)
for
the 1st – 4th Claimants
Mr Willers QC and Maria Moodie (instructed by South West Law)
for
the 5th Claimant
Mr Stephen Whale (instructed by Treasury Solicitor)
for
the 1st Defendant
The 2nd-5th Defendants did not appear and were not represented
Hearing dates: 10th, 11th, 12th June 2014
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
MR JUSTICE LEWIS:
INTRODUCTION
- These are applications made by five Claimants pursuant to section 288
of
the Town and Country Planning Act 1990 ("the 1990 Act") to quash decisions
of
the
Secretary of State for Communities
and
Local Government
dismissing an appeal against a refusal
of
planning permission. Two
of
the Claimants, Mrs Doran and Mrs Lee, also apply
for
permission to appeal under section 289
of
the 1990 Act against a decision
of
the
Secretary of State
dismissing an appeal against an enforcement notice.
- In brief, three
of
the Claimants are Irish Travellers. They are Mr Edward
Connors
, Mr Miley
Connors
(who is not related to Mr Edward
Connors
) and Mrs Doran. Two
of
the Claimants are Romany Gypsies. They are Mr Sines and Mrs Lee. They all sought planning permission to make a material change in the use
of
land to enable them to station caravans or mobile homes on various sites. The sites were all in the Green Belt. The
Secretary of State
decided to dismiss all
of
the appeals.
- Four
of
the Claimants, those represented by Mr Masters, seek to challenge a policy adopted by the
Secretary of State
that he would consider directing that all appeals involving Traveller sites in the Green Belt be decided by him rather than by an inspector appointed on his behalf. Mr Masters submits that that policy is unlawful in that it involves discrimination contrary to Article 14
of
European Convention on Human Rights ("the ECHR") or a breach
of
the public sector equality duty set out in section 149
of
the Equality Act 2010. All five Claimants contend that the individual decisions taken by the Defendant to dismiss their individual appeals were unlawful.
- The judgment is lengthy. First, this is in part because the judgment involves five different claims. The facts in relation to each Claimant, and his or her family, are different. It is necessary to set out the facts
of
the individual cases in order to determine whether or not each individual Claimant has been treated lawfully. Secondly, the length
of
the judgment reflects in part the very large number
of
points taken by the Claimants in their claim forms, skeleton arguments and oral submissions. Even then, this judgment focuses on the principal claims advanced to determine whether the decisions are lawful or not. The judgment does not seek to deal with each and every point raised although all the matters raised by the Claimants have been carefully considered.
THE LEGAL FRAMEWORK
Planning Permissions and Enforcement Notices
- Planning permission is required
for
development including the carrying on
of
building or other works or, as here, the making
of
a material change
of
use
of
land: see sections 55 and 57
of
the 1990 Act. A
local
planning authority may grant planning permission, either unconditionally or subject to such conditions as they think fit or refuse permission: see section 71
of
the 1990 Act. Planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise: see section 38(6)
of
the Planning and Compulsory Purchase Act 2004 ("the 2004 Act").
- In addition, a
local
planning authority may serve an enforcement notice where it appears to them that there has been a breach
of
planning control,
for
example the carrying on
of
building works or the making
of
a material change
of
use
of
land without permission: see section 172
of
the 1990 Act. The enforcement notice may, amongst other things, require the person concerned to cease an unauthorised use or take steps to remedy any breach
of
planning control.
Appeals to the
Secretary of State
- An applicant who is refused planning permission may appeal to the
Secretary of State for Communities
and
Local Government
under section 78
of
the 1990 Act. In addition, an individual may also appeal against that enforcement notice to the
Secretary of State
under section 174
of
the 1990 Act. One
of
the grounds
of
appeal is that planning permission should be granted
for
the material change
of
use. Another is that any period
for
complying with the enforcement notice falls short
of
what should reasonably be allowed.
- The
Secretary of State
may, by regulation, prescribe classes
of
appeals which are to be determined by an appointed person, that is an inspector, rather than by the
Secretary of State
: see paragraph 1
of
Schedule 6 to the 1990 Act. Paragraph 3(1)
of
that Schedule provides, however, that:
"3(1) The
Secretary of State
may, if he thinks fit, direct that an appeal which would otherwise fall to be decided by an appointed person be determined instead by the
Secretary of State
"
- Where the
Secretary of State
gives a direction in relation to a particular appeal, the inspector will hold an inquiry, hear evidence and make a report and recommendations to the
Secretary of State
but the
Secretary of State
will decide whether or not the appeal will be allowed.
Further Challenges in the High Court
- There are further avenues
of
challenge to the High Court. Section 288(1)
of
the 1990 Act provides that:
(1) If any person—
(a) is aggrieved by any order to which this section applies and wishes to question the validity
of
that order on the grounds—
(i) that the order is not within the powers
of
this Act, or
(ii) that any
of
the relevant requirements have not been complied with in relation to that order; or
(b) is aggrieved by any action on the part
of
the
Secretary of State
to which this section applies and wishes to question the validity
of
that action on the grounds—
(i) that the action is not within the powers
of
this Act, or
(ii) that any
of
the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section.
- Section 288(4)
of
the 1990 Act provides that:
"(4) This section applies to any such order as in mentioned in subsection (2)
of
section 284 and to any such action on the part
of
the
Secretary of State
as is mentioned in subsection (3)
of
that section."
- Those orders and actions include, amongst other things, a decision
of
the
Secretary of State
dismissing an appeal under section 78: see section 284(3)(b)
of
the 1990 Act. The powers
of
the High Court are set out in subsection 288(5)
of
the 1990 Act which provides that:
"(5) On any application under this section the High Court—
(a) may, subject to subsection (6), by interim order suspend the operation
of
the order or action, the validity
of
which is questioned by the application, until the final determination
of
the proceedings;
(b) if satisfied that the order or action in question is not within the powers
of
this Act, or that the interests
of
the applicant have been substantially prejudiced by a failure to comply with any
of
the relevant requirements in relation to it, may quash that order or action."
- There is also the possibility
of
appealing against a decision given in enforcement proceedings. Section 289(1)
of
the 1990 Act provides that:
"(1) Where the
Secretary of State
gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the
local
planning authority or any other person having an interest in the land to which the notice relates may, according as rules
of
court may provide, either appeal to the High Court against a decision on a point
of
law or require the
Secretary of State
to
state
and sign a case
for
the opinion
of
the High Court."
- Permission is required to appeal: see section 289(6)
of
the 1990 Act.
THE FACTUAL BACKGROUND
The Policy Framework
- The claims relate to sites in four different
local
authority areas. Each
of
the
local
planning authorities have development plans
for
their area. In addition, there is relevant guidance contained in the National Planning Policy Framework ("the Framework") and the Planning Policy
for
Traveller Sites ("the Traveller Sites Policy"), both
of
which are material considerations in the determination
of
planning applications and appeals.
The Framework
- Section 9
of
the Framework deals with protecting Green Belt Land. Paragraphs 79 and 80 provide as follows:
"79. The
Government
attaches great importance to Green Belts. The fundamental aim
of
Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics
of
Green Belts are their openness and their permanence.
"80. Green Belt serves five purposes:
- to check the unrestricted sprawl
of
large built-up areas;
- to prevent neighbouring towns merging into one another;
- to assist in safeguarding the countryside from encroachment;
- to preserve the setting and special character
of
historic towns; and
- to assist in urban regeneration, by encouraging the recycling
of
derelict and other urban land."
- The Framework then explains that the general extent
of
the Green Belt across England is already established. Paragraph 83 encourages
local
planning authorities to establish Green Belt boundaries in their
local
plans and only to alter them in exceptional circumstances. Paragraph 85
of
the Framework gives further guidance on defining the boundaries including guidance that the Green Belt should not include land which it is unnecessary to keep permanently open.
- Paragraphs 87 and 88
of
the Framework provide as follows:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
"88. When considering any planning application,
local
planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason
of
inappropriateness, and any other harm, is clearly outweighed by other considerations."
- Paragraphs 89 and 90 provide certain limited exceptions, not material to this case, in which the construction
of
certain buildings or particular forms
of
development in the Green Belt is not inappropriate.
The Traveller Sites Policy
- The Traveller Sites Policy sets out the
government
's planning policy
for
traveller sites and
states
that it should be read in conjunction with the Framework. Paragraph 3 records that:
"The
Government
's overarching aim is to ensure fair and equal treatment
for
travellers, in a way that facilitates the traditional and nomadic way
of
life
of
travellers while respecting the interests
of
the settled community."
- Paragraph 4 then sets out a series
of
aims. These include encouraging
local
planning authorities to assess the need
for
sites and to work collaboratively to develop fair and effective strategies to meet need through the identification
of
land
for
sites. Another aim is to promote more Traveller site provision whilst recognising that there will always be Travellers who cannot provide their own site. Another aim is that:
"plan-making and decision-taking should protect Green Belt from inappropriate development"
- There then follow a series
of
specific policies. Policy B, by way
of
example, provides that
local
planning authorities should set pitch targets
for
Gypsies and Travellers which address the likely permanent and transient site accommodation needs in their area. The policy includes
local
planning authorities identifying a supply
of
specific deliverable sites sufficient to provide five years worth
of
sites against the locally set targets. Policy E deals with Traveller sites in the Green Belt and is in the following terms:
"14. Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development.
15. Green Belt boundaries should be altered only in exceptional circumstances. If a
local
planning authority wishes to make an exceptional limited alteration to the defined Green Belt boundary (which might be to accommodate a site inset within the Green Belt) to meet a specific, identified need
for
a traveller site, it should do so only through the plan-making process and not in response to a planning application. If land is removed from the Green Belt in this way, it should be specifically allocated in the development plan as a traveller site only."
- Policy H in the Traveller Sites Policy deals with determining planning applications
for
Traveller sites. It reminds planning authorities that applications must be determined in accordance with the development plan unless material considerations indicate otherwise (that is the obligation imposed by section 38(6)
of
the 2004 Act. It notes that applications
for
planning permission should be assessed having regard to the policies in the Framework and the Traveller Sites Policy (which are material considerations). The policy then sets out particular issues that should be considered when dealing with planning applications. Policy H includes, at paragraph 25, the following:
"Subject to the implementation arrangements at paragraph 28, if a
local
planning authority cannot demonstrate an up-to-date five year supply
of
deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications
for
the grant
of
temporary planning permission."
- Paragraph 28 provides that the policy in paragraph 25 only applies to applications
for
temporary planning permission
for
Traveller sites made within 12 months after the policy came into force. The policy came into force some time in March 2012, when the framework itself came into force (see paragraph 27
of
the Traveller Sites Policy).
- It is accepted that the five Claimants, who are either Irish Travellers or Romany Gypsies, fall within the definition
of
Gypsy and Traveller
for
the purpose
of
the policy.
The Arrangements
for
Appeals against Refusal
of
Planning Permission and the Ministerial Announcement
- Prior to 1 July 2013, the
Secretary of State
's policy was to direct that appeals
for
planning permission in the case
of
Gypsy and Traveller sites should be determined by him where the proposed development involved significant development in the Green Belt. Development was considered to be significant if it involved 3 pitches or 6 caravans.
- On 1 July 2013, the Parliamentary Under
Secretary of State for Communities
and
Local Government
made a written statement which modified that policy. The statement
states
as follows:
"Our policy document, "Planning Policy
for
Traveller Sites", was issued in March 2012. It makes it clear that both temporary and permanent Traveller sites are inappropriate development in the green belt and that planning decisions should protect green belt land from such inappropriate development.
As set out in that document and in March 2012's national planning policy framework, inappropriate development in the green belt should not be approved except in very special circumstances. Having considered recent planning decisions by
councils
and the planning inspectorate, it has become apparent that, in some cases, the green belt is not always being given the sufficient protection that was the explicit policy intent
of
Ministers.
The
Secretary of State
wishes to make clear that, in considering planning applications, although each case will depend on its facts, he considers that the single issue
of
unmet demand, whether
for
Traveller sites or
for
conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the "very special circumstances" justifying inappropriate development in the green belt.
The
Secretary of State
wishes to give particular scrutiny to Traveller site appeals in the green belt, so that he can consider the extent to which "Planning Policy
for
Traveller Sites" is meeting this
Government
's clear policy intentions. To this end he is hereby revising the appeal recovery criteria issued on 30 June 2008 and will consider
for
recovery appeals involving traveller sites in the green belt.

For
the avoidance
of
doubt, this does not mean that all such appeals will be recovered, but that the
Secretary of State
will likely recover a number
of
appeals in order to test the relevant policies at national level. The
Secretary of State
will apply this criteria
for
a period
of
six months, after which it will be reviewed."
- On 17 January 2014, the Minister made the following ministerial statement:
"The
Government
's planning policy is clear that both temporary and permanent traveller sites are inappropriate development in the green belt and that planning decisions should protect green-belt land from such inappropriate development. I also noted the
Secretary of State
's policy position that unmet need, whether
for
traveller sites or
for
conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the "very special circumstances" justifying inappropriate development in the green belt.
The
Secretary of State
wishes to re-emphasise this policy point to both
local
planning authorities and planning inspectors as a material consideration in their planning decisions.
That statement revised the appeals recovery criteria by stating that,
for
a period
of
six months, the
Secretary of State
would consider
for
recovery appeals involving traveller sites in the green belt, after which the position would be reviewed.
The
Secretary of State
remains concerned about the extent to which planning appeal decisions are meeting the
Government
's clear policy intentions, particularly as to whether sufficient weight is being given to the importance
of
green-belt protection. Therefore, he intends to continue to consider
for
recovery appeals involving traveller sites in the green belt.
Moreover, Ministers are considering the case
for
further improvements to both planning policy and practice guidance to strengthen green belt protection in this regard. We also want to consider the case
for
changes to the planning definition
of
"travellers" to reflect whether it should only refer to those who actually travel and have a mobile or transitory lifestyle. We are open to representations on these matters and will be launching a consultation in due course."
THE INDIVIDUAL DECISIONS
- All five Claimants applied to their
local
planning authority
for
planning permission to make a material change in the use
of
land from use
for
agriculture to use involving the stationing
of
one or more caravans or mobile homes. Those applications were either refused or the
local
planning authority failed to determine the application. The Claimants appealed. In addition, in three
of
the cases, those
of
Mrs Doran, Mr Sines and Mrs Lee, the
local
planning authority served enforcement notices alleging a breach
of
planning control. They appealed against those enforcement notices.
- In each case, the Defendant directed that the appeal be determined by him. There were inquiries and reports and recommendations made by an inspector. Then the Defendant determined the appeal. The individual inspectors' reports and the decisions tend to follow the same pattern. They identify the issues. They consider the individual considerations that arose on the appeal in terms
of
matters such as the Green Belt, unmet need and personal circumstances, expressing a view on the relevance and significance
of
those matters. Then the reports and the decisions balance the considerations overall to determine whether or not the appeal should be allowed. The relevant facts and extracts from the reports and decision letters (with the cross-referencing to paragraph numbers removed) are set out below.
(1) Mr Edward
Connors
- Mr Edward
Connors
is an Irish Traveller. On 1 December 2011, he applied to
Reigate
and
Banstead
Borough
Council for
planning permission to make a material change
of
use
of
land to use
for
a private Gypsy and Traveller site
for
up to six mobile homes. The site was within the Green Belt. An earlier application
for
planning permission
for
a similar development had been refused and an appeal had been dismissed.
- The application was refused by notice dated 11 July 2012
for
similar reasons to the earlier application, namely the proposed development was contrary to Green Belt policy (and other issues not relevant to this claim). Mr Edward
Connors
appealed. As the proposed development would involve permission
for
up to six mobile homes, it was considered to involve significant development in the Green Belt. On 13 March 2013, therefore, the
Secretary of State
directed that the appeal would be determined by him not by an inspector. That decision was,
of
course, taken before the ministerial statement
of
1 July 2013 and was based on the previous practice not on the practice announced in that statement.
- An inspector held an inquiry on 15 May 2013. He reported to the
Secretary of State
. He described the site. He noted that Mr Edward
Connors
lived in a comparatively new house to the south
of
the site. He described the proposal which was to allow the siting
of
up to six mobile homes on the site. The proposed occupiers
of
four pitches would be Mr Edward
Connors
' (1) daughter and son-in-law, namely John and Margaret Robb and their four children, (2) another daughter and son-in-law, namely Jim and Ann Moloney and their three children, (3) Patrick and Kathleen
Connors
and their son, and (4) Ned
Connors
. Two proposed pitches were intended
for
future occupation by family members as the children grew up.
The Inspector's Report and Recommendations
- The inspector described the relevant planning policies and summarised the case
for
Mr Edward
Connors
and
for
the planning authority. At paragraph 40, the inspector noted that the proposed occupiers
of
the site were an extended family
of
Irish Travellers who continued their family tradition
of
travelling to undertake manual work in England and sometimes overseas. They fell within the definition
of
Gypsies and Travellers in the Traveller Sites Policy. The inspector noted that the proposal involved inappropriate development in the Green Belt. He identified the main considerations as follows:
"Having established the above, and bearing in mind the matters agreed between the parties, I have identified the following main considerations:
- The effect
of
the proposal in the openness
of
the Green Belt and the purposes
of
including land within it.
- Whether the site is suitable
for
the proposed use, in terms
of
the noise from the adjacent motorway.
- Other considerations which favour the proposal including the general need
for
traveller sites, the accommodation needs
of
the proposed occupiers and their personal circumstances.
- Whether the harm to the Green Belt through inappropriateness, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development. "
- In relation to the effect on the Green Belt, the inspector said this:
"43. One
of
the essential characteristics
of
Green Belt's is their openness. The site would accommodate the proposed six mobile homes, together with touring caravans, parked vehicles and the ancillary domestic structures and paraphernalia which might reasonably be expected. It is likely that there would also be internal boundary treatments. The result would be a significant loss
of
openness.
44. One
of
the purposes
of
the Green Belt is to assist in safeguarding the countryside from encroachment. Although there are some other buildings and structures in the vicinity the area is broadly rural, and the caravans and the accoutrements
of
a residential gypsy and traveller site would encroach into the countryside to the further detriment
of
the Green Belt.
45. The Framework provides that substantial weight should be given to any harm to the Green Belt and by definition this must apply to inappropriate development. In this case I find that there would be substantial harm to the Green Belt by reason
of
inappropriateness and additional harm both through loss
of
openness and encroachment. The proposal therefore conflicts with national policy and [
local
plan] policy CO1. These matters are important material considerations, which were not contested by the appellant, and reflect the issues dealt with by the previous appeal decision.
For
this reason this section
of
the report is brief, but this does not imply that it has correspondingly limited weight. Overall this is a consideration which weighs substantially against the appeal."
- The inspector dealt with the need
for
and supply
of
Gypsy and Traveller sites in
Reigate
and
Banstead
. He concluded that there was "substantial unmet need in the borough which weighed significantly in favour
of
the appeal". He considered it very likely that any new allocations
of
land
for
Traveller and Gypsy sites, or any extensions
of
existing sites, would be in the 70%
of
the borough that fell within the Green Belt. He concluded on this issue that:
"Given the current substantial unmet need it is clear that the
Council
is unable to demonstrate a five year supply
of
specific deliverable sites. This factor, together with the long standing failure to meet that need, lends significant weight in favour
of
the appeal."
- The inspector also considered the personal circumstances
of
the family. He noted that the proposal would provide a settled base which would enable the extended family to live together as a group and provide support
for
each other. That is part
of
the Gypsy and Traveller way
of
life which the Travellers Site Policy seeks to facilitate and the inspector considered that this factor provided some weight in favour
of
allowing the appeal.
- The inspector noted that settled accommodation could provide benefits in terms
of
access to health, welfare and employment but that no specific arguments had been put forward on behalf
of
Mr Edwards
Connors
to indicate that any
of
those matters featured in this case. It was confirmed that the potential occupiers were already registered with the
local
general practitioner.
- The inspector also said the following:
"71. The educational needs
of
the children are put forward as giving support to the proposal. The potential occupiers
of
the site include 3 children
of
school age – John and Mary Robb (aged 10 and 6) and Margaret Maloney (aged 6). There are 5 younger children.
Of
the school age children, it was stated that two have occasional tutors but that the appellant was not aware
of
any educational provision
for
the remaining school age child - it is a reasonable assumption that the appellant would know if any education was being provided. The benefit
of
having a settled base from which education services can be accessed – both
for
those children currently
of
school ages and those who have yet to attain that age – is an important factor to be taken into account in assessing accommodation needs and this weighs significantly in favour
of
the proposal.
72. There is no suggestion from any party that the proposed occupier's needs can be met by any other alternative site. The appellant stated that a number
of
the proposed occupiers have to resort to camping by the roadside – although the evidence is also that some station their touring caravans within the curtilage
of
the appellant's house from time to time. The planning status
of
this activity is not clear, but it has clearly happened
for
some time without action from the
Council
. Overall, it does not seem likely that the occupiers would have to entirely resort to the roadside, given the apparent availability
of
the land around the appellant's house – although this clearly does not provide a permanent base
for
mobile homes."
- The inspector concluded that overall, the lack
of
a permanent site
for
the proposed occupiers, especially to facilitate the education
of
the children, weighed significantly in favour
of
the proposal.
- Having considered the individual factors in turn, the inspector then set out his view
of
the overall planning balance and conclusions as follows.
"74. The Framework and [Traveller Sites Policy] clearly
state
that gypsy and traveller sites are inappropriate development in the Green Belt. Substantial weight must attach to inappropriateness together with, in the present case, further weight as a result
of
the loss
of
openness and encroachment into the countryside. To the harm brought about as a result
of
the proposal itself must be added the relatively limited consequences
of
the increased height
of
the bund and the fence, which would be necessary to address the noise issue. The Framework advises that inappropriate development should not be approved except in very special circumstances, which will not exist unless the potential harm to the Green Belt by reason
of
inappropriateness, and any other harm, is clearly outweighed by other considerations.
75. This is the totality
of
the harm caused by the proposal, as the noise issue could be satisfactorily resolved by the use
of
conditions. The noise factor, allowing
for
mitigation, is essentially neutral in the planning balance.
76. There are however other considerations which favour the proposal. The agreed considerable unmet need
for
sites within the Borough, which has potentially been underestimated, carries significant weight in favour
of
the appeal, along with the long standing failure
of
the
Council
to meet that need. The acknowledged lack
of
alternative available permanent sites
for
the occupiers also weighs significantly in favour
of
the appeal.
77. Some weight can be given to the fact that the proposal would allow the extended family to live together as a group. However the personal circumstances
of
the group, particularly in relation to the education
of
the children, weighs significantly in favour
of
the proposal.
78. Dismissing the appeal would not result in the direct loss
of
any
of
the proposed occupiers' homes. However it would force the families to continue a generally itinerant lifestyle (even allowing
for
their use
of
the appellant's curtilage as temporary accommodation). This would represent an interference with their home and family life and this adds further weight in favour
of
the appeal. The needs
of
children are a primary consideration and their schooling is unsatisfactory in the absence
of
a settled base.
79. Having regard to the balance
of
consideration outlined above and the effect
of
the proposal on the public interest, I conclude that dismissal
of
the appeal would have a disproportionate effect on the rights
of
the families under Article 8
of
the European Convention on Human Rights.
80. The Equality Act 2010 places a Single Equality Duty on decision makers in respect
of
planning permission. The proposed occupants are Irish Gypsies and there is a duty to have due regard to the need to eliminate unlawful discrimination and to promote equality
of
opportunity and good relations between different racial groups. Dismissal
of
the appeal would perpetuate the disadvantage suffered by the proposed occupants due to the absence
of
suitable, available alternative sites to accommodate the family group. This would reduce equality
of
opportunity and the fostering
of
good relations.
81. In the circumstances set out above, the harm by reason
of
inappropriateness and the additional harm to openness and the purpose
of
designating the Green Belt is clearly outweighed by the totality
of
the other considerations. On balance, I conclude that very special circumstances exist which justify this inappropriate development in the Green Belt.
82. It is recommended that the appeal be allowed and planning permission be granted subject to conditions set out in Annex A to this report."
- The inspector therefore recommended that the appeal be allowed and planning permission granted. The inspector noted that, if the
Secretary of State
considered that the other considerations did not outweigh the harm, consideration should be given to granting planning permission
for
a temporary period
of
three years.
The
Secretary of State
's Decision
- By letter dated 30 October 2013, the Defendant gave his decision on the appeal. He disagreed with the inspector's recommendation and decided that the appeal should be dismissed and planning permission refused. The Defendant began by considering the individual considerations identified by the inspector. In relation to the Green Belt, the Defendant agreed with the inspector's conclusion that the proposed development would result in a significant loss
of
openness and, in addition, would encroach into the countryside and undermine one
of
the purposes
of
the Green Belt. Consequently, the Defendant considered on this issue that:
"The
Secretary of State
also agrees with the Inspector that there would be substantial harm to the Green Belt by reason
of
inappropriateness and additional harm both through loss
of
openness and encroachment. He agrees that the proposal therefore conflicts with national policy and [
local
plan] policy CO1. On the basis
of
the evidence before him, the
Secretary of State
concludes that the proposal would have a significantly adverse impact on the Green Belt, and he considers that this is a consideration which weighs substantially against the appeal."
- The Defendant accepted that there was substantial unmet need and the planning authority was not able to demonstrate that it had a five year supply
of
specific deliverable sites. He considered that "this factor together with the long standing failure to meet that need, lends significant weight in favour
of
the appeal".
- The Defendant next considered the personal circumstances
of
the proposed occupiers and he attributed a different significance to these issues
for
the following reasons:
"15. The
Secretary of State
notes that some
of
the proposed occupiers station their touring caravans within the curtilage
of
the appellant's house from time to time; and he agrees with the Inspector that it does not seem likely that the occupiers would have to entirely resort to the roadside, given the apparent availability
of
the land around the appellant's house.
16. The
Secretary of State
has carefully considered the Inspector's conclusion that,
for
the reasons in [paragraph 69 to 73
of
the inspector's report], the lack
of
a permanent settled site
for
the proposed occupiers, especially to facilitate the education
of
the children, weighs significantly in favour
of
the proposal. As it does not seem likely that the occupiers would have to entirely resort to the roadside if the appeal were refused, he attributes less weight than the Inspector to the personal circumstances
of
the proposal. However, he considers that they should be afforded some weight in the determination
of
the appeal. Although he considers the best interests
of
the children to be a primary consideration, in the circumstances
of
the case, as none
of
the children are attending school, notwithstanding that two have occasional tutors, and there does not appear to be a compelling reason
for
them to live on this particular site, he considers that the needs
of
the children should only carry some weight."
- Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal
of
permanent planning permission, the Defendant's essential reasoning, building on the matters referred to earlier in his decision letter, are contained in the following three paragraphs.
"18. The Framework provides that substantial weight should be given to any harm to the Green Belt and by definition this must apply to inappropriate development. In this case, the
Secretary of State
agrees with the inspector that there would be substantial harm to the Green Belt by reason
of
inappropriateness and additional harm both through loss
of
openness and encroachment (IR45). He agrees that the proposal therefore conflicts with national policy and LP policy Co1 (IR45). He also agrees with the Inspector that to the harm brought about as a result
of
the proposal itself must be added the increased height
of
the bund and the fence, which would be necessary to address the noise issue (IR74). Overall, on the basis
of
the evidence before him, the
Secretary of State
considers that the proposal would have a significantly adverse impact on the Green Belt, and he considers that this is a consideration which weighs substantially against the appeal.
…
20. The
Secretary of State
agrees with the Inspector that the considerable unmet need
for
sites within the Borough, which has potentially been underestimated, carries significant weight in favour
of
the appeal, along with the long standing failure
of
the
Council
to meet that need, and the lack
of
alternative available permanent sites
for
the occupiers. He also agrees with the Inspector that some weight can be given to the fact that the proposal would allow the extended family to live together as a group. He has carefully considered the Inspector's conclusion that the lack
of
a permanent site
for
the proposed occupiers, especially to facilitate the education
of
the children, weighs significantly in favour
of
the proposal. As he considers it unlikely that the occupiers would have to entirely resort to the roadside if the appeal were refused, he attributes less weight than the Inspector to their personal circumstances, although he considers they should be afforded some weight. Although he considers the best interests
of
the children to be a primary consideration, he notes that none
of
the children are attending school, notwithstanding that two have occasional tutors, and that there does not appear to be a compelling reason
for
them to live on this particular site. He therefore considers that the needs
of
the children should only carry some weight.
21. The
Secretary of State
has carefully considered the balance
of
considerations in this case. In doing so he has balanced the needs
of
the proposed occupiers against the need to protect the Green Belt. His Written Ministerial Statement
of
1 July made clear that unmet demand on its own is unlikely to outweigh harm to the Green Belt and other harm to constitute very special circumstances justifying inappropriate development in the Green Belt. Although he considers the unmet need
for
sites to carry significant weight in favour
of
the proposal, he does not consider this, in itself, sufficient to outweigh the harm to the Green Belt and other harm, which he considers very significant, to comprise the very special circumstances necessary to justify development. He considers that, even when combined with the personal circumstances
of
the proposed occupants and the needs
of
the children, to which he gives some weight, the very special circumstances necessary to justify the development do not arise."
- In relation to the decision to refuse temporary planning permission, the Defendant's reasons were as follows:
"The
Secretary of State
has gone on to consider the Inspector's conclusions with regard to temporary permission. He agrees with the Inspector that, in terms
of
the advice in paragraph 25
of
the PPTS, the absence
of
an up-to-date 5 year supply
of
deliverable sites is a significant material consideration in favour
of
the appeal. However, in the circumstances
of
the case, he considers that the harm to the Green Belt would continue to carry substantial weight even in the case
of
a temporary permission. He also considers that the harm to the Green Belt's openness and harm in terms
of
encroachment into the countryside would remain substantial, although he accepts that the harm to the Green Belt would come to an end when any temporary permission expired."
- The Defendant also dealt in two separate paragraphs with the question
of
Article 8 ECHR and the duties imposed by the Equality Act 2010. His reasons
for
concluding that refusal
of
planning permission would not involve a breach
of
Article 8 ECHR or the Equality Act 2010 were as follows:
"23. In terms
of
interference with the appellant's rights under Article 8
of
the European Convention on Human Rights, the
Secretary of State
considers that these rights are qualified. He considers that it is his role as planning decision-taker to ensure that any interference with these rights is in accordance with the law and is necessary in a democratic society, applying the principle
of
proportionality. His decision to dismiss the appeal would not result in the direct loss
of
any
of
the proposed occupier's homes, although it may force the families to continue a generally itinerant lifestyle (even allowing
for
their use
of
the appellant's curtilage as temporary accommodation), and, disagreeing with the Inspector's conclusion, he takes the view that in this case the harm to the Green Belt and other harm is such that dismissal
of
this appeal is a necessary and proportionate response.
24. The
Secretary of State
has considered the Inspector's comments about the Equality Act 2010 and the fact that the proposed occupants are Irish Gypsies (IR80), a protected group
for
the purposes
of
that Act. In making his decision, the
Secretary of State
has had due regard to the requirements
of
the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality
of
opportunity and foster good relations between those with protected characteristics and others. Following careful consideration
of
these matters he concludes that any impact
of
the dismissal
of
this appeal is justified and proportionate."
For
those reasons, the Defendant dismissed the appeal against the refusal
of
planning permission.
(2) Mr Miley
Connors
- Mr Miley
Connors
is also an Irish Traveller. On 17 July 2012, he applied to
Reigate
and
Banstead
Borough
Council for
planning permission to make a material change
of
use
of
land to mixed use as a single dwelling house and use as a residential caravan site. The site was within the Green Belt.
- Mr Miley
Connors
already owned and lived in a house on the appeal site and planning permission existed
for
that house. The proposal was that there be a change
of
use to mixed use, that is
for
the existing house and, in addition, the stationing on the land
of
three mobile homes. These would be occupied by (1) his brother and sister-in-law, Patrick and Martina
Connors
, (2) his sister and brother-in-law, Patrick and Ann Deleny and their children aged 19 and 14, and (3) his other brother, Eddie
Connors
.
- Planning permission was refused by the
local
planning authority by notice dated 28 September 2012. He appealed to the Defendant. As the proposed development would involve permission
for
three mobile caravans, it was considered to involve significant development in the Green Belt. On 14 March 2013, therefore, the
Secretary of State
directed that the appeal be determined by him not an inspector. That direction was,
of
course, issued before the ministerial statement
of
1 July 2013 and was based on the previous practice not on the practice announced in that statement.
The Inspector's Report and Recommendation
- The inspector held an inquiry on 8 and 9 May 2013. She reported to the Defendant on 2 July 2013. She described the site, the relevant planning policies, the proposal and summarised the case
for
the appellant and the
local
planning authority. She identified the main considerations as follows:
"i. the impact
of
the development on the openness
of
the Green Belt and on the purposes
of
including land within it;
ii. whether the development would cause harm to the character and appearance
of
the area having regard to its location within the AGLV and its proximity to the AONB;
iii. whether the harm to the Green Belt by reason
of
inappropriateness and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development."
- The inspector then considered the individual matters in turn. In relation to the Green Belt, she noted that the essential characteristics
of
the Green Belt were its openness and permanence. She considered that a development involving three mobile homes, an area
of
hardstanding and ancillary domestic paraphernalia situated on part
of
the site which was currently open and free from development would reduce the openness to a moderate degree.
- The inspector also dealt with the question
of
whether the proposal would undermine the policy
of
safeguarding the countryside from encroachment. She considered it would not
for
these reasons:
"…the appeal site forms part
of
a cluster
of
built development set within the surrounding countryside. The proposed development would result in the intensification
of
the number
of
structures within the existing cluster
of
development. But, it would not result in an expansion
of
the boundaries
of
that cluster
of
development out towards the countryside. The site is also separated from the countryside to the west by the busy A217 dual carriageway and the development would have minimal impact when viewed from the open countryside to the east. Consequently, the proposal would have no discernable impact on the existing extent
of
the countryside and would not therefore result in conflict with the purpose
of
safeguarding the countryside from encroachment."
- The inspector also considered the impact
of
the proposed development on the character and appearance
of
an area
of
outstanding national beauty ("AONB"). The appeal site was not within the AONB and she considered that the site would "barely be visible from within these fields within the AONB". Where it would be visible, only the tops
of
the mobile homes would be likely to be seen. The inspector considered that as the proposed development "would not be inside the AONB, neither would it be visible from it", the proposed development would not be contrary to the relevant development plan policy.
- The inspector noted that there was a considerable unmet need
for
sites within the
local
authority area
of Reigate
and
Banstead
. She noted that 70%
of
the borough lay within the Green Belt and the parties agreed that any new Gypsy or Traveller site would be likely to be in the Green Belt. In relation to the personal circumstances
of
the proposed occupants, the inspector said this:
"85. Neither Patrick and Martina nor Patrick, Ann and their children have a settled base on which to reside. They spend time travelling in England and Ireland and Patrick and Ann stay on another Family's pitch outside the Borough when that family are away travelling. The
Council
accepts that there are currently no alternative available sites
for
the extended family to reside on if planning permission is refused
for
this site. This provides significant weight in favour
of
the appeal
for
these potential occupants.
86. Eddie
Connors
does not travel due to ill health. He currently lives in a flat some 30 minutes drive away from the appeal site and often needs to spend time in hospital. Elizabeth
Connors
(Miley, Patrick, Ann and Eddie's mother) also lives in a flat next door to Eddie. Elizabeth's care needs do not appear to be particularly out
of
the ordinary
for
an aging relative. Furthermore, they do not provide any direct weight in favour
of
the appeal, as she is not proposing to move into one
of
the mobiles currently under consideration. However, I also heard that Ann currently provides much
of
the care
for
Elizabeth, with Miley taking over when Ann is travelling. One
of
the reasons
for
the proposal in this appeal is to enable the extended family to live together as a group where they are able to provide the necessary care
for
their more dependant relatives. This is part
of
the gypsy way
of
life which [the Travellers Site Policy] seeks to facilitate and this provides some weight in favour
of
this appeal.
87. [The Travellers Site Policy] also recognises that settled accommodation can provide benefits in terms
of
access to health, welfare and employment infrastructure and this benefit would apply to Patrick and Martina and Patrick and Ann, together with their daughter and son (who is still a minor, even though this was not put forward by the appellant in support
of
the appeal). This carries a small amount
of
weight in favour
of
the appeal."
- The inspector's assessment on the overall planning balance was as follows:
"91. The Framework advises that inappropriate development should not be approved except in very special circumstances. These will not exist unless the potential harm to the Green Belt by reason
of
inappropriateness, and any other harm, is clearly outweighed by other considerations. The harm caused by reason
of
inappropriateness and the moderate impact on openness carry substantial weight against the proposal. The additional harm in terms
of
its impact on the character and appearance
of
the area adds some further weight against the proposal in the short to medium term. Over time, and providing planting is implemented and maintained, the harm caused by this factor would reduce. The impact on the privacy
of
occupants
of
the mobile homes to the rear adds a very limited amount
of
additional weight against the development.
92. In favour
of
the appeal is the considerable unmet need
for
sites within the Borough as well as the national and regional need. This carries significant weight in favour
of
the development as does the long standing failure
of
the
Council
to meet that need. The acknowledged lack
of
alternative available sites
for
the extended family to reside on provides significant weight in favour
of
the appeal. Some weight is given to enabling the extended family to live together and care
for
each other as a group. Enabling those who do not currently have a settled base to access health, welfare and employment infrastructure also carries a small amount
of
weight in favour
of
the appeal.
93. Dismissing the appeal would not result in the direct loss
of
any
of
the proposed occupiers' homes. However, the judgement in Rafferty & Jones
v
SSCLG & North Somerset CoA EWCA Civ 809 [2009] held that Article 8 Rights are capable
of
being infringed even if the caravans are not already on the land. Dismissing the appeal will force those families without a permanent base to continue their itinerant lifestyles. This would represent an interference with their home and family life and this adds further weight in favour
of
the appeal. Having regard to the balance
of
considerations outlined above and the effect
of
the proposal upon the public interest, I conclude that dismissal
of
the appeal would have a disproportionate effect upon the rights
of
those families without a permanent base under Article 8
of
the European Convention on Human Rights. The interference would be less in terms
of
Eddie, as he already has settled accommodation.
94. The Equality Act 2010 places a Single Equality Duty on decision makers in respect
of
planning permission. The proposed occupants are Irish Gypsies and there is a duty to have due regard to the need to eliminate unlawful discrimination and to promote equality
of
opportunity and good relations between different racial groups. The requirements
of
this Single Equality Duty have been followed in considering this appeal. Dismissal
of
the appeal would perpetuate the disadvantage suffered by the proposed occupants due to the absence
of
suitable, available alternative sites to accommodate the family group. This would reduce equality
of
opportunity and the fostering
of
good relations.
95. In the circumstances set out above, the harm by reason
of
inappropriateness and the additional harm identified is clearly outweighed by the totality
of
the other considerations. On balance, considering the case as a whole, I conclude that very special circumstances do exist so as to justify this inappropriate development in the Green Belt. The proposal would not therefore conflict with [
local
plan] policy CO1."
- The inspector therefore recommended that the appeal be allowed and planning permission granted. Alternatively, if the
Secretary of State
disagreed, she recommended the granting
of
temporary planning permission
for
three years.
The
Secretary of State
's Decision
- By letter dated 30 October 2013, the Defendant gave his decision on the appeal. He disagreed with the inspector's recommendation and decided that the appeal should be dismissed and planning permission refused. He agreed that the development would constitute inappropriate development in the Green Belt. He agreed with the inspector's assessment that the siting
of
mobile homes on a currently open part
of
the site which was free from development would reduce the openness
of
the Green Belt to a moderate degree.
- He did not agree with the inspector on the question
of
the additional harm from encroachment. He considered that the development would cause such additional harm
for
the following reason:
"The
Secretary of State
notes that one
of
the five purposes
of
GBs set out in the Framework is in dispute between the parties, namely the purpose
of
the GB to assist in safeguarding the countryside from encroachment. The
Secretary of State
does not disagree with the Inspector that: the appeal site forms part
of
a cluster
of
built development set within the surrounding countryside; the appeal proposals would not result in an expansion
of
the boundaries
of
that cluster
of
development; or that the site is separated from the countryside to the west by the A217. However, having carefully considered the site plans and location map that are before him, he has some sympathy with the
Council
's view expressed in its closing submission (Document 19) that sitting three caravans to the south
of
the existing house would plainly amount to encroachment into the countryside. In reaching his conclusion on the issue
of
encroachment the
Secretary of State
gives little weight to the Inspector's comment that the development would have minimal impact when viewed from open countryside to the east. He considers that this factor should be properly considered in his assessment
of
the impact
of
the character and appearance
of
the area as set out at paragraph 15-17 below, but has little bearing on his assessment
of
the level
of
physical encroachment into the countryside that would arise. Overall, the
Secretary of State
considers that the proposals would lead to a moderate degree
of
harm to the GB purpose to assist in the safeguarding
of
the countryside from encroachment."
For
those reasons, the Defendant considered that the proposed development was inappropriate development which was harmful to the Green Belt because
of
both the effect on its openness, and additionally, because
of
the harm to the purpose
of
safeguarding the countryside from encroachment. He considered that substantial weight should be accorded to the harm identified.
- He also disagreed with the inspector's conclusion on harm to the AONB. He considered that great weight should be given to conserving landscape and scenic beauty within an AONB, as recognised by the Framework. Such areas had the highest level
of
protection. The Defendant considered that the impact on views from the AONB, as the mobile homes would be visible from within the AONB, would lead to conflict with the relevant
local
plan policy which should be taken into account.
- The Defendant accepted that there was substantial unmet need and the planning authority was not able to demonstrate that it had a five year supply
of
specific deliverable sites. The Defendant next considered the personal circumstances
of
the proposed occupiers. His view on this was as follows:
"19. The
Secretary of State
notes that the
Council
accepts that there are currently no alternative available sites
for
the extended family to reside on if planning permission is refused
for
this site. He also notes that those individuals named by the Inspector do not have a settled base on which to reside. The
Secretary of State
agrees with the Inspector that this provides significant weight in favour
of
the appeal in respect
of
these potential occupants.
20. The
Secretary of State
notes that one
of
the reasons
for
the proposal is to enable the extended family to live together as a group where they are able to provide the necessary care
for
their more dependant relatives, and agrees with the Inspector that this is part
of
the gypsy way
of
life which the PPTS seeks to facilitate. However, the
Secretary of State
has also taken into account that there is no detailed supporting evidence before him regarding the care requirements
of
Elizabeth
Connors
, nor is there evidence which makes it clear to the
Secretary of State
how allowing the appeal
for
this particular site would provide significant benefits in relation to the provision
of
such care given that Elizabeth
Connors
is not a proposed site occupant herself. Overall he gives this factor limited weight in favour
of
this appeal.
21. The
Secretary of State
has carefully considered the Inspector's comments at [paragraph 87
of
the inspector's report]. He notes that one
of
the proposed occupants is a minor. Notwithstanding that the appellant did not put this forward in support
of
the appeal, or the absence
of
evidence before him in relation to the education and health needs
of
this child, the
Secretary of State
has taken into account as a primary consideration to his decision the probability that a settled base would provide the best opportunity to attend school and to register with a doctor. Overall on this consideration, the
Secretary of State
agrees with the Inspector that the benefits that settled accommodation can provide in terms
of
access to health, welfare and employment infrastructure carries a small amount
of
weight in favour
of
the appeal
for
the proposed occupants …."
- Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal
of
permanent planning permission, the Defendant's essential reasoning, building on the matters referred to earlier in his decision letter, are contained in the following three paragraphs.
"23. The
Secretary of State
has carefully considered the Inspector's comments. Weighing against the proposal the
Secretary of State
has found that the proposals are inappropriate development in the GB, would reduce openness to a moderate degree and has also identified a moderate degree
of
harm to the GB purpose to assist in the safeguarding
of
the countryside from encroachment. The
Secretary of State
considers that overall this constitutes significant harm to the GB to which he attaches substantial weight. Added to this, he has found that the loss
of
existing vegetation to the south
of
the site would cause some harm to the character and appearance
of
the area in the short to medium term but that in the longer term the harm would be mitigated. The
Secretary of State
also concludes that some weight should be given to the conflict that he has identified with [
local
plan] policy CO1 on account
of
the harm to the views from the AONB. He agrees with the Inspector that the impact on the privacy
of
occupants
of
the mobile homes to the rear adds a very limited amount
of
additional weight against the development.
24. In favour
of
the appeal the
Secretary of State
agrees with the Inspector that the considerable unmet need
for
sites within the Borough, as well as the national and regional need, carries significant weight in favour
of
the development, as does the long standing failure
of
the
Council
to meet that need. Added to this he has found that, in respect
of
the potential occupants who do not have a settled base, the absence
of
alternative available sites
for
the extended family to reside on provides significant weigh in favour
of
the appeal. Furthermore the
Secretary of State
has found that limited weight should be attached to enabling the extended family to live together as a group where they are able to provide the necessary care
for
their more dependent relatives, and that benefits in terms
of
access to health, welfare and employment structure attract a small amount
of
weight in favour
of
the appeal in respect
of
the proposed occupants ….
25. The
Secretary of State
has carefully considered the Inspector's comments at IR97 on whether a temporary planning permission should be granted. Parties agree that a three year period would be reasonable. The
Secretary of State
agrees that this would be an appropriate period
for
any temporary planning permission, and has proceeded with his balancing
of
considerations
for
a temporary permission on this basis. In considering the case
for
a temporary permission, the
Secretary of State
agrees with the Inspector that the absence
of
an up-to-date 5 year supply
of
deliverable sites is a significant material consideration. He has also taken into account the other material considerations in favour
of
the appeal that he has identified at paragraph 24 above."
- In relation to the decision to refuse temporary planning permission, the Defendant's reasons were as follows:
"27. Weighing against such a temporary permission, the
Secretary of State
attaches substantial weight to the harm to the GB in respect
of
the inappropriateness
of
the proposals, the harm to openness and to the GB purpose to assist in the safeguarding
of
the countryside from encroachment. However, setting aside the harm from the loss
of
existing vegetation to the south
of
the site, he considers that the harm that would result from a grant
of
permanent permission, as summarised at paragraph 23 above, would not be so great given that the proposal would be
of
temporary duration. In respect
of
the harm from the loss
of
existing vegetation to the south
of
the site, the
Secretary of State
considers that the initial harm resulting from a permanent permission would be no less significant
for
a temporary permission
for
a three year period, but that there would be less opportunity
for
the longer term benefits
of
the proposed planting mitigation to have an impact.
28. In conclusion, the
Secretary of State
considers that the factors he has identified in favour
of
a grant
of
temporary permission, together, do not clearly outweigh the substantial harm to the GB and other harm he has identified, and he concludes that very special circumstances do not exist to justify a grant
of
planning permission on a temporary basis."
- The Defendant also gave his reasons
for
concluding that refusal
of
planning permission would not involve a breach
of
Article 8 ECHR or the Equality Act 2010 in two separate paragraphs, as follows:
"29. In terms
of
interference with the appellants' rights under Article 8
of
the European Convention on Human Rights, the
Secretary of State
does not disagree with the Inspector that these rights are capable
of
being infringed even if the caravans are not already on the land, but he also considers that these rights are qualified. The
Secretary of State
considers that it is his role as planning decision-taker to ensure that any interference with these rights is in accordance with the law and is necessary in a democratic society, applying the principle
of
proportionality. He agrees with the Inspector that dismissing the appeal will force those families without a permanent base to continue their itinerant lifestyle and that this would represent an interference with their home and family life, and that the interference would be less in terms
of
Eddie
Connors
who has settled accommodation. The
Secretary of State
takes the view that in this case the harm to the GB and other harm is such that dismissal
of
this appeal is a necessary and proportionate response.
30. In terms
of
the Equality Act 2010, the
Secretary of State
has had regard to the fact that the proposed occupants are Irish Gypsies, a protected group under that Act, and he agrees with the Inspector that there is a duty to have due regard to the need to eliminate unlawful discrimination and to promote equality
of
opportunity and good relations between different racial groups. The
Secretary of State
has had full regard to this duty in reaching his decision, but considers that, such is the level
of
harm that he has identified in this case, the impact
of
dismissing the appeal is justified and proportionate."
- His overall conclusion was expressed in the following terms:
"32. The
Secretary of State
concludes that the proposals are inappropriate development in the GB and, having weighed up all the material considerations, he does not consider that the factors which weigh in favour
of
the proposal, either individually or cumulatively, clearly outweigh the harm that would arise from a permanent permission. In his consideration
of
whether or not to grant a temporary permission, the
Secretary of State
is also satisfied that those factors which weigh in favour
of
the proposal would not clearly outweigh the harm that would arise from the proposal despite its limited duration."
For
those reasons, the Defendant dismissed the appeal against the refusal
of
planning permission.
(3) Mrs Bridget Doran
- Mrs Doran is an Irish Traveller. On 23 January 2012, she applied to Tonbridge and Malling Borough
Council for
planning permission
for
a change
of
use
of
a site to use as a Gypsy and Traveller site with two mobile homes and two touring caravans, one day room and one utility room. The site is within the Green Belt. The
local
planning authority failed to determine that application within time and Mrs Doran appealed to the
Secretary of State
.
- On 8 November 2012, the
local
planning authority also served an enforcement notice alleging a breach
of
planning control, namely use
of
the site as a residential caravan site, and required that use to cease within four months. Mrs Doran appealed to the
Secretary of State
under section 174
of
the 1990 Act on the grounds that planning permission should be granted and that the period
for
compliance was too short.
- On 16 August 2013, the
Secretary of State
directed that two appeals be determined by him rather than an inspector. That direction was given in accordance with the ministerial statement
of
1 July 2013 that proposals
for
Traveller and Gypsy sites in the Green Belt may determined by the
Secretary of State
himself.
The Inspector's Report and Recommendations
- The inspector noted Mrs Doran had acquired the site in 2006. She and her family had occupied the site since 2007 including a period
of
two years with temporary planning permission granted in 2010 and which expired in April 2012. That planning permission had been granted on the basis that the acknowledged unmet need
for
Gypsy and Traveller sites within the borough would be addressed by the redevelopment and extension
of
a site owned by the county
council
at Coldharbour Lane, Aylesford.
- At the time that the inspector visited the site, there were three caravans and a mobile home stationed on the land
for
residential purposes together with a day room. At that time, Mrs Doran lived there with her husband and children. Sadly, her husband has since died.
- The inspector identified the main issues as follows:
"I consider these to be the extent
of
any harm to the GB; the effect on the character and appearance
of
the area; the effect
of
noise on living conditions
of
the occupants
of
the land and whether there are any other considerations sufficient to clearly outweigh the harm to the GB, and any other harm, thereby justifying development on the basis
of
very special circumstances (VSCs)"
- The inspector recorded that it was agreed that the proposed development amounted to inappropriate development in the Green Belt. The inspector considered that the siting
of
structures on the land reduced the openness
of
the Green Belt and, additionally, encroached into the countryside.
- The inspector then dealt with other matters such as the character and appearance
of
the area and noise and considered that those matters did not weigh against the grant
of
planning permission. The inspector then considered the need
for
new pitches in the borough and whether or not Coldharbour Lane would provide a suitable alternative site
for
the appellant and her family.
- He found that there was no guarantee that Mrs Doran and her family would be able to relocate there as they were not on the waiting list. They had no intention
of
putting themselves forward
for
pitches at Coldharbour Lane as they where Irish Travellers and did not wish to move to a site where the current occupants were all English Gypsies. The inspector noted that there were sites were Irish Travellers and English Gypsies co-existed peacefully, but there were other sites where they did not. As there were no Irish Travellers at present on this site, it was conjecture as to whether Irish Travellers and English Gypsies would co-exist peacefully on this site.
- The inspector also considered that the borough's strategy involved relying on the provision
of
a publicly owned site
for
Travellers and Gypsies. He described this as a "one size fits all policy". He considered that it was inconsistent with one
of
the aims
of
the Travellers Site Policy which was to promote more private site traveller provision and said:
"My conclusion on this matter, therefore, is that the needs
of
the appellant and her family cannot reasonably be met by the
Council
's one-size-fits-all approach which the extended public site at Coldharbour Lane represents and I afford this matter significant weight"
- The inspector also dealt with the personal circumstances and human rights issues in the following way.
"44. Health needs, particularly the deteriorating health
of
the appellant's husband, and the educational needs
of
the children living on the appeal site are important considerations. The
Council
argues that these could be met on any other settled site within the borough, including at Coldharbour Lane. However, there are no available pitches on any site other than at Coldharbour Lane and I have already found that this site would not meet the needs
of
the appellant and her family.
45. In the absence
of
any other suitable alternative site, the appellant and her family would be deprived
of
their home if they were required to vacate the appeal site. In all likelihood this would force the family onto the road, with all the hardships this entails. Not only would this amount to interference with their rights under Article 8
of
the Human Rights Act 1998 but it would also make access to health and, significantly, educational facilities
for
the children difficult. The courts have recently recognised that substantial weight must be given to the children's circumstances.
46. Having regard to these matters I find that the personal circumstances
of
the appellant and her family should be afforded substantial weight when carrying out the overall balancing exercise."
- The inspector's conclusions on the overall planning balance in the two appeals were as follows:
"50. The appeal development and s78 proposal both amount to inappropriate development in the GB and I give substantial weight to the harm caused by this. I also give substantial weight to the harm caused by encroachment into the GB and the reduction
of
openness, even though the actual harm may be relatively limited.
51. I have found that the appeal development and s78 proposal would not result in any material harm to the character and appearance
for
the area and that the
Council
's concerns about noise from the A25 and railway line could be addressed by appropriate conditions.
52. Insofar as other considerations are concerned, I have found that the
Council
cannot demonstrate a five year supply
of
sites, even by its own reckoning, and that, in all likelihood, it has under-estimated the level
of
unmet need. I give significant weight to this matter.
53. I have also found that the
Council
's 'one-size-fits-all' approach to meeting the need
for
pitches in the foreseeable future, which is based on the 17 new pitches at Coldharbour Lane being made available to
local
families on a first preference basis, does not accord with the policies and advice in both the Traveller policy and The Framework which envisage a degree
of
choice especially when it comes to the matter
of
tenure. No doubt some families will depend on public pitches but there will be others including the appellant and her family who want and are able to develop their own sites. I afford this matter, and the fact that the Coldharbour Lane site is not suitable
for
the appellant and her family to relocate to, significant weight.
54. Given that there is no available, suitable alternative site
for
the appellant and her family to move to they would, in all likelihood, be forced onto the road if required to vacate the appeal site, with all the attendant problems this would bring, including making it difficult
for
the family to access
local
doctors and schools. In this regard I heard that the appellant's husband is seriously ill and that there are school age children living on the appeal site whose education would be disrupted if they were forced to vacate a site the family has been living on since 2007. With respect to the children's continuing education, the courts have held that this is a matter which should be given substantial weight.
55. Overall, when carrying out the required balancing exercise, I conclude that other considerations clearly outweigh the harm to the GB and that very special circumstances exist to justify the development as carried out and the s78 appeal proposal. Therefore, I recommend that the appeals should be allowed and that planning permission is granted both
for
the development already carried out and the s78 appeal scheme.
56. I have considered whether any such permission should be granted on a temporary basis but given the fact that the appellant and her family have been living on the site
for
six years, including a two year period when they benefited from temporary planning permission, I have discarded this approach in favour
of
recommending that permanent permission be granted. However, in view
of
the weight I have given to the appellant's personal circumstances, I suggest imposing a condition limiting occupancy
of
the site to the appellant and her family. Other conditions suggested by the
Council
in the event that one or both appeals are successful are considered below.
57. In my judgment, the protection
of
the public interest cannot be achieved by means which would be less interfering
of
the rights
of
the appellant and her family. They are proportionate and necessary in the circumstances and would not result in a violation
of
their rights under Article 8
of
the European Convention on Human Rights as incorporated into UK Law by the Human Rights Act 1998. I am also satisfied that permission in the terms described would comply with the Public Sector Equality duty contained in the Equality Act 2010."
- The inspector recognised that the
Secretary of State
may disagree with his recommendation and may refuse to allow the appeals and grant planning permission. He, therefore, also considered whether the four month period
for
compliance with the enforcement notice was adequate and concluded that it was not. He recommended that the appeal should be allowed on that ground and the time
for
compliance extended to 31 December 2015 to enable the family to find an alternative site.
The Defendant's Decision
- By letter dated 5 March 2014, the Defendant gave his decision on the appeals. He disagreed with the inspector's recommendation and decided that the appeals against the refusal
of
planning permission should be dismissed and planning permission refused.
- The Defendant noted that the parties agreed that the proposed development would amount to inappropriate development in the Green Belt which was harmful and should not be permitted save in very special circumstances. He noted that the reduction in openness and the encroachment into the countryside was relatively limited. Nevertheless, he agreed that substantial weight should be given to the harm in the Green Belt unless clearly outweighed by other considerations.
- The Defendant also expressed his views on other matters referred to by the inspector. These included pitch requirements. The Defendant considered that there was a realistic prospect that further sites would become available, including private sites, and that planning circumstances were likely to change in the foreseeable future. He also commented upon the availability
of
other sites. He said this:
"The
Secretary of State
notes that it is considered that the alternative site put forward by the
Council
as an alternative is not considered suitable
for
the appellant and her family
for
the reasons he gives. However, he further notes that the appellant was aware, when a temporary planning permission was granted by the
Council
in 2010, that consent was granted on the basis that additional public pitches would become available on the Kent Country
Council
owned site. He considers that if this site was not considered suitable,
for
the reasons identified by the inspector, the appellant has had the opportunity to use the stability
of
the temporary planning consent to search
for
a site and engage with the
Council
to ensure that their accommodation needs were taken into account. He therefore gives this matter less weight than the Inspector."
- On personal circumstances, the Defendant said this:
"The
Secretary of State
has given very careful consideration to the appellant's personal circumstances. He has had regard to the deteriorating health
of
the appellant's husband and the educational needs
of
her children and grandchildren,
of
which 3 are reported to be in education, living on the site. The
Secretary of State
agrees with the Inspector that should these appeals be dismissed the appellant and her family would be required to vacate the site and that there is a risk they would be forced onto the road. The
Secretary of State
acknowledges that this would be an interference with the family's rights under Article 8
of
the European Convention on Human Rights (ECHR). He takes this matter into account in the overall planning balance."
- Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal
of
permanent planning permission, the Defendant's essential reasoning, building on the matters referred to earlier in his decision letter, are contained in the following paragraphs:
"17. The
Secretary of State
agrees with the Inspector that the development represents inappropriate development in the GB and that he gives substantial weight to this harm and to other harm in terms
of
encroachment into the GB and reduction
of
openness.
18. He has gone on to consider the Inspector's reasoning with regard to need and he agrees that the
Council
cannot demonstrate a five year supply
of
sites and he gives significant weight to this matter. However, he does not accept the Inspector's conclusion that the Scale is underestimated. As indicated in paragraph 12 above, the question
of
need has not been subjected to detailed scrutiny through the [development plan] process and he therefore considers the weight in favour
of
this matter is qualified. Furthermore, with regard to the suitability
of
an alternative site the
Secretary of State
considers
for
the reasons set out in paragraph 14 that they have had the benefit
of
residing on the site with the benefit
of
a temporary consent on the basis that pitches would become available at the extended Coldharbour Lane KCC owned site and he has seen no evidence to suggest that they have liaised with the
Council
, prior to these appeals, to seek an alternative suitable site on the basis that they had no intention
of
locating to the KCC site. Accordingly he gives the availability
of
an alternative site less weight than the Inspector.
19. The
Secretary of State
has therefore gone on to carefully consider the balance
of
the needs
of
the appellant and her family against the need to protect the Green Belt. He agrees with the Inspector that the unmet need
for
sites and the personal circumstances
of
the appellant and her family, including the best interests
of
the children, carry substantial weight in favour
of
the proposal. However, unlike the Inspector, he does not consider this, in itself, is sufficient to outweigh the harm to the Green Belt and other harms to comprise the very special circumstances necessary to justify the appeal proposal. He considers that, even when combined with the personal circumstances
of
the proposed occupants and the best interests
of
the children, which he considers are a primary consideration in this case, the very special circumstances necessary to justify the development do not arise and therefore permanent planning permission is not justified."
- In relation to the decision to refuse temporary planning permission, the Defendant's reasons were as follows:
"The
Secretary of State
therefore disagrees with the Inspector's conclusions and goes on to consider whether it would be appropriate, or not, to consider whether a temporary planning permission is justified having regard to paragraph 25
of
the [Traveller Sites Policy]. In terms
of
the advice in paragraph 25
of
the [Traveller Sites Policy], the absence
of
an up-to-date 5 year supply
of
deliverable sites is a significant material consideration in favour
of
the appeal. However, in the circumstances
of
this case, he considers that the harm to the GB would continue to carry substantial weight even in the case
of
a 4 or 5 year temporary permission as put forward by the appellant. He considers that the harm to the GB would remain substantial and, although he accepts that it would come to an end when any temporary permission expired, he does not consider that it would thereby be outweighed by the other considerations advanced in favour
of
the development."
- The Defendant also gave his reasons
for
concluding that refusal
of
planning permission would not involve a breach
of
Article 8 ECHR or the Equality Act 2010 in two separate paragraphs as follows:
"21. In coming to this conclusion, the
Secretary of State
acknowledges that the impact
of
this decision would interfere with the occupiers' home and family life and the peaceful enjoyment
of
their property, which are protected by Article 8 and Article 1
of
the First Protocol
of
the ECHR. The
Secretary of State
has also taken account
of
the rights
of
the children and grandchildren living on the appeal site and he considers the best interests
of
those children to be a primary consideration in the determination
of
these appeals. He has given this substantial weight. He has gone on to weigh this against the wider public interest, including the need to protect the Green Belt from harm and, unlike the Inspector, he concludes that dismissing the appeal against the enforcement notice and against the refusal
of
permanent planning permission would strike an appropriate and fair balance.
22. The
Secretary of State
has considered the Equality Act 2010 and the fact that the occupants are Irish Travellers, a protected group
for
the purposes
of
the Act. In making his decision, the
Secretary of State
has due regard to the requirements
of
the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality
of
opportunity and foster good relations between those with protected characteristics and others. Following careful consideration
of
these matters he concludes that any impact
of
the dismissal
of
these appeals is justified and proportionate."
- The Defendant considered the question
of
whether the time
for
compliance with the enforcement notice was too short. He considered that four months was too short but disagreed with the inspector's recommendation that compliance should be effected by 31 December 2015. He considered that 12 months was a reasonable period
for
compliance and to enable the occupiers to find alternative accommodation.
- His overall conclusion was expressed in the following terms:
"Although the
Secretary of State
considers that the unmet need
for
sites and the needs
of
the occupants carry significant weight in favour
of
the proposal, he does not consider that these factors, either individually or taken together, are sufficient to clearly outweigh the harm to the GB and other harm so as to amount to the very special circumstances needed to justify granting permanent or a temporary consent. He therefore considers that the appeals under section 78 and under section 174 ground (a) should be dismissed and the appeal under ground (g) should succeed with the compliance period varied from four months to 12 months to allow time
for
the occupiers to look
for
alternative accommodation."
For
those reasons, the Defendant dismissed the appeal against the refusal
of
planning permission but allowed the appeal in relation to the time
for
compliance so that it read 12 months after the notice took effect.
(4) Mr Sines
- On 11 July 2011, Mr Sines applied to the Royal Borough
of
Windsor and Maidenhead Borough
Council for
planning permission
for
a change
of
use
of
a site to use
for
a five unit Gypsy and Traveller site. The site is within the Green Belt. The
local
planning authority refused that application by a notice dated 7 August 2012. Mr Sines appealed to the
Secretary of State
.
- On 13 July 2012, the
local
planning authority also served an enforcement notice alleging a breach
of
planning control, namely without planning permission, changing the use
of
the site to use
for
the siting
of
caravans, mobile homes, motor homes and tents and importing hardcore and other material to form access roads and hardstanding. The enforcement notice required the use to cease and the materials to be removed within one month. Mr Sines appealed to the
Secretary of State
under section 174
of
the 1990 Act on the grounds that planning permission should be granted and that the period
for
compliance was too short.
- As the proposed development would involve permission
for
five caravans, it was considered to involve significant development in the Green Belt. On 13 March 2013, therefore, the
Secretary of State
directed that the appeal would be determined by him not an inspector. That direction was given before the ministerial statement
of
1 July 2013 and was based on the previous practice not on the practice announced in that statement.
The Inspector's Report and Recommendations
- The inspector described the site, the planning history and the proposals. In relation to the appeal against the refusal
of
planning permission, the position was that Mr Sines lived in a house some way away in Virginia Water. He owned the site and an adjacent mobile home park. The site which was the subject
of
the planning appeals would be used
for
five permanent pitches
for
caravans to be occupied by members
of
Mr Sines' extended family, namely his brother-in-law, his two daughters (one being married with three children and one due to marry shortly) and his sister-in-law and her two sons (one
of
whom was to marry shortly and would occupy, it seems, the fifth pitch as his home).
- In relation to the enforcement notice, the position was different. The use being enforced against, and the application
for
planning permission, was
for
use
of
the land as a holiday caravan and camping site although Mr Sines indicated that he would be prepared to limit the number
of
caravans and tents on the site to five and ten respectively.
- In relation to the appeal against the refusal
of
planning permission, the inspector found that the proposal would involve a limited reduction in the openness
of
the Green Belt and, in addition, some encroachment into the countryside. He considered that there would be a need
for
21 pitches in the period 2012 to 2017. He considered that there was a failure by the
local
planning authority to identify and make available an adequate supply
of
Gypsy and Traveller sites and no indication
of
when it would be in a position to identify a five year supply
of
sites. In relation to personal circumstances, the inspector said this at paragraph 139
of
his report:
"The appellant's case does not rely on personal circumstances, save that the intended occupants are gypsies, a matter which is not in dispute. These are only advanced as an additional material consideration if they are considered to be pivotal to the balancing exercise, in which case the appellant accepts that a personal occupancy condition would be appropriate on any permission granted. However, none
of
the intended occupants or the appellant appeared at the inquiry and they have not provided personal statements. Consequently, there is no direct evidence before me as to their immediate accommodation, health or education needs, other than as set out in Mr Brown's proof
of
evidence. Consequently, I can only give limited weight to personal circumstances in the overall balancing exercise."
- The inspector's conclusions on this appeal were as follows:
"150. In carrying out the overall balancing exercise in GB cases, The Framework requires that substantial weight should be given to any harm to the GB and
states
that very special circumstances will not exist unless the potential harm by reason
of
inappropriateness, and any other harm, is clearly outweighed by other considerations.
151. The proposal would amount to inappropriate development. It would also result in a reduction in openness and encroach into the GB beyond a well-defined settlement boundary. Whilst any actual harm to the GB may be relatively limited it still has to be given substantial weight in the overall balancing exercise and I conclude that the proposal would conflict with [
local
plan] Policies GB1 and GB2 and the relevant provisions
of
the Framework in this regard.
152. In the context
of
nearby development and what the Traveller policy has to say about gypsy and traveller sites in rural or semi-rural settings, the limited harm likely to be caused to the character and appearance
of
site and its surroundings would be acceptable. The
Council
has not suggested or sought to demonstrate otherwise.
153. The
Council
now accepts that its concerns about flood risk to the proposal could be addressed by conditions. I share that view and conclude that the proposal would not conflict with the relevant policies in the Framework or the advice in the TG document.
154. I have also found that the
Council
's concerns about highway safety, particularly the use
of
a substandard access, could be addressed by the appellant's willingness to set back a section
of
lawful walling. Contrary to the
Council
's position, I consider this could be treated as a minor amendment to the proposal and secured by condition. The location
of
the proposed refuse and recycling store could also be dealt with by conditions and proposed amendments to the internal road layout would ensure compliance with the HA's adopted standards. Therefore, I conclude that the proposal would not result in any material harm to highway safety or conflict with LP Policies T5 and P4 or relevant policies in The Framework in this regard.
155. There are no sites available to meet the level
of
need identified in the recent GTAA commissioned by the
Council
and no alternative sites which the intended occupants, all
of
whom are gypsies, could occupy. Nor does the
Council
have a five year supply
of
gypsy and traveller sites or any clear timetable
for
identifying such a supply, as required by the Traveller policy. None
of
these matters is in dispute and I have afforded them significant weight.
156. As a consequence
of
its failure to meet the current level
of
unmet need and demonstrate an up-to-date five year supply
of
deliverable sites the
Council
has yet to comply with its duties under the Housing Act 2004. I have also found that it is in breach
of
the Equality Act 2010 in this regard. Its continuing failure to meet the need
for
additional sites means that it is also failing to facilitate the gypsy way
of
life, one
of
the overarching aims
of
the Traveller policy, and causing interference with the Human Rights
of
gypsies and travellers in need
of
accommodation within the borough, including the intended occupants
of
the appeal site. However, the appellant is only advancing personal circumstances as an additional material consideration if they are considered pivotal to the overall balancing.
157. The Appeal A proposal's off-site impacts would be mitigated by the submitted unilateral undertaking which secures developer contributions towards the costs
of
providing or improving a range
of local
facilities, infrastructure and services. In concluding that the proposal would not, therefore, conflict with [
local
plan] Policies T6, R3 and IMP1, I have not afforded any weight to those element
of
the undertaking directed towards public art and heritage features as I have found that these do not meet the tests set out in paragraph 204
of
the Framework.
158. Overall, when carrying out the required balancing exercise, my conclusions are that other considerations clearly outweigh the harm to the GB and that very special circumstances exist to justify the development. However, the
Council
has demonstrated that it is making progress towards identifying and meeting the level
of
need
for
gypsy and traveller sites in the borough and the thrust
of
the Traveller policy is that the assessment
of
need and site allocation to meet any perceived need should come about through a measured and systematic approach. Therefore, I consider it would be appropriate to limit the extent
of
any permission to a temporary period.
159. As progress so far has been slow and there is little or no prospect
of
this situation changing in the short term, not least because
of
the considerable constraints on the
Council
finding new sites due to the extend
of
the GB in the borough, I consider that a relatively long four year temporary permission would be appropriate. This should enable the
Council
to demonstrate whether this approach is capable
of
identifying and delivering a better site than the appeal site; in the meantime, the harm caused by a temporary consent would, by definition, be less than would be the case if permanent permission were to be granted.
160. In my judgment, the protection
of
the public interest cannot be achieved by means which would be less interfering
of
the rights
of
gypsies and travellers in need
of
accommodation in the borough. They are proportionate and necessary in the circumstances and would not result in a violation
of
their rights under Article 8
of
the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998. I am also satisfied that permission in the terms described would comply with the Public Sector Equality Duty contained in the Equality Act 2010."
- In relation to the appeal against the enforcement notice, and planning permission
for
a caravan site, the inspector considered that the reasons
for
permitting the development did not outweigh the harm caused to the Green Belt. He therefore recommended dismissing that appeal and refusing to grant planning permission
for
that development. He also found that one month was an adequate time
for
compliance with the enforcement notice.
The
Secretary of State
's Decision.
- By letter dated 19 December 2013, the Defendant gave his decision on the appeal. He disagreed with the inspector's recommendation that the appeal against the refusal
of
planning permission should be allowed. He decided that that appeal should be dismissed and planning permission refused.
- The Defendant considered first the individual considerations. He agreed that the development would constitute inappropriate development in the Green Belt. He, too, concluded that the
local
planning authority did not have a five year supply
of
Gypsy and Traveller sites and no clear timetable
for
identifying such a supply. In relation to personal circumstances, the Defendant noted that:
"20. The
Secretary of State
notes that the proposed development consists
of
five permanent pitches all
of
which are intended
for
occupation by members
of
the appellant's extended family, which includes three young children, one
of
which is
of
school age but not the appellant himself.
21. In determining the case, the
Secretary of State
has given particular consideration to the best interests
of
the children, which he considers to be a primary consideration. He understands that the school age child attends a school in Lyne which is attended by other traveller children and where teachers are familiar with supporting children with a nomadic lifestyle. However, the
Secretary of State
has no evidence that any children would be made homeless or forced into a roadside living if the appeal were dismissed, or that, in these circumstances, the child currently in education at the school in Lyne could not continue there.
22.
For
the reasons in [paragraph 139
of
the inspector's report], he agrees with the Inspector that only limited weight can be given to the personal circumstances
of
the proposed occupiers in the overall balancing exercise."
- Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal
of
permanent planning permission, the Defendant's essential reasoning, building on the matters referred to earlier in his decision letter, are contained in the following paragraph:
"The
Secretary of State
has carefully considered the balance
of
considerations in Appeal A in relation to the grant
of
a permanent permission. In doing so he has balanced the needs
of
the proposed occupiers against the need to protect the Green Belt. His Written Ministerial Statement
of
1 July made clear that unmet demand on its own is unlikely to outweigh harm to the Green Belt and other harm to constitute very special circumstances justifying inappropriate development in the Green Belt. Although he considers the unmet need
for
sites to carry significant weight in favour
of
the proposal, he does not consider this, in itself, sufficient to outweigh the harm to the Green Belt and other harm, which he considers substantial, to comprise the very special circumstances
of
the intended occupiers and the needs
of
the children, to which he gives limited weight, and agrees with the Inspector that only limited weight should be given to the personal circumstances overall in this particular case (IR139). As a result he does not consider the personal circumstances tip the balance in favour
of
the intended occupiers so as to constitute very special circumstances necessary to justify the development."
- In relation to the decision to refuse temporary planning permission, the Defendant's reasons were as follows:
"The
Secretary of State
has gone on to consider the Inspector's conclusions with regard to temporary permission. He considers that in this case the absence
of
an up-to-date 5 year supply
of
deliverable sites is a significant material consideration in favour
of
the appeal because there has been a failure by the
Council
to identify and make available an adequate supply
of
gypsy and traveller sites over the years contrary to the [Traveller Sites Policy]. However, in the circumstances
of
the case, he considers that the harm to the Green Belt would continue to carry substantial weight even in the case
of
a temporary permission. He also considers that the harm to the Green Belt's openness and harm in terms
of
encroachment into the countryside would remain substantial, although he accepts that the harm to the Green Belt would come to an end when any temporary permission expired."
- The Defendant also gave his reasons
for
concluding that refusal
of
planning permission would not involve a breach
of
Article 8 ECHR or the Equality Act 2010 in two separate paragraphs as follows:
"The
Secretary of State
has considered the Inspector's comments about the Equality Act 2010 and the fact that the proposed occupants are Romany Gypsies (IR156), a protected group
for
the purposes
of
that Act. In making his decision, the
Secretary of State
has had due regard to the requirements
of
the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality
of
opportunity and foster good relations between those with protected characteristics and others. Following careful consideration
of
these matters he concludes that any impact
of
the dismissal
of
this appeal is justified and proportionate."
- The overall conclusion is expressed in the following terms:
"The
Secretary of State
considers the unmet need
for
sites carries significant weight in favour
of
the proposal. However, he does not consider this, in itself, sufficient to outweigh the harm to the Green Belt and other harm, which he considers significant, to comprise the very special circumstances necessary to justify development. In determining the case, the
Secretary of State
has given particular consideration to the best interests
of
the children, which he considers to be a primary consideration. However, he considers that, even when combined with the personal circumstances
of
the proposed occupants and the needs
of
the children, to which he also gives limited weight, the very special circumstances necessary to justify the development on a permanent basis do not arise. In the circumstances
of
the case, he considers that the harm to the Green belt would continue to carry substantial weight even in the case
of
a temporary permission."
- The Defendant therefore dismissed that appeal and refused planning permission
for
the making
of
a material change
of
use
of
land to use
for
a five unit Gypsy or Traveller caravan site. He also dismissed the appeal against the enforcement notice.
(5) Mrs Lee
- Mrs Lee is a Romany Gypsy. On 25 October 2011, Mrs Lee applied to Runnymede Borough
Council for
planning permission
for
a change
of
use
of
a site to allow the retention and siting
of
one residential mobile home to be used to accommodate one Romany Gypsy family. The site is within the Green Belt. The
local
planning authority refused that application by a notice dated 16 July 2012. Mrs Lee appealed to the
Secretary of State
.
- On 20 July 2012, the
local
planning authority also served an enforcement notice alleging a breach
of
planning control, namely without planning permission, changing the use
of
the site to mixed use comprising a commercial use and the stationing
of
one mobile home in independent residential use as a Gypsy site. The enforcement notice required the use to cease, the removal
of
the mobile home and hardstanding, fencing and a shed within nine months. Mrs Lee appealed to the
Secretary of State
under section 174
of
the 1990 Act on the grounds that planning permission should be granted and that the period
for
compliance was too short.
- On 16 September 2013, the
Secretary of State
directed that the two appeals be determined by him rather than an inspector. That direction was given in accordance with the ministerial statement
of
1 July 2013 that proposals
for
Traveller and Gypsy sites in the Green Belt may be determined by the
Secretary of State
himself.
The Inspector's Report and Recommendations
- The inspector held a hearing. He described the site and the proposal. Essentially, Mrs Lee lives in a semi-detached house. The area adjacent to the house, which formed the appeal site, was part
of
an adjoining commercial yard. The proposed development was
for
a residential mobile home sited in that commercial yard. A residential mobile home had been stationed on the appeal site without planning permission and was occupied by Mrs Lee's daughter and son-in law and their three children.
- The inspector identified the main issues as follows:
"As it is not in dispute that the appeal development amounts to inappropriate development in 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."
- The inspector dealt first with the individual considerations. He noted that it was accepted that the development was inappropriate development in the Green Belt. That resulted in a limited reduction in openness because
of
its relatively small scale. However, the inspector considered that the harm to the Green Belt should be given substantial weight. The inspector found that there was unmet need in the borough
for
Gypsy and Traveller sites, that the
local
planning authority did not have a five year supply
of
pitches and it was unlikely to have identified, let alone provided, such a supply before 2015.
- The inspector dealt with the personal circumstances
of
the proposed occupants in the following terms:
"The couple occupying the appeal site, Victoria and Michael, have a baby and two other young children in full time education living with them. Victoria, the appellant's daughter, has a medical condition needing regular treatment and I heard that there is a level
of
mutual support and dependency, including over childcare arrangements, between mother and daughter who, until she married, lived at home. The daughter's husband, Michael, on the other hand, has always lived in a caravan and has an aversion to living in bricks and mortar."
- He noted that the
local
planning authority did not dispute the need to live in a caravan relatively close to the appeal site. He noted that the only site where pitches were available was Walnut Tree Farm but that would be unlikely to be suitable as Mrs Lee's family were Romany Gypsies and the occupants
of
that other site were Irish Travellers. The inspector considered that they would be unlikely to be made welcome at the other site and would not wish to relocate there. The inspector concluded that:
"33. 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
Victoria'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.
34. The courts have established that when considering the proportionality
of
a requirement that an individual leave his home relevant considerations including whether the home was established have to be taken into consideration. It has also been established unlawfully that if very special circumstances could be established simply by relying on a catalogue
of
hardship the concept would be devalued and the planning system undermined. However, the courts have also recently held that all family interests, including the best interests
of
children, must be taken into account and assessed in cases where Article 8 is engaged."
- The inspector's conclusion on the overall balancing exercise was in the following terms:
"35. I have found that the appeal development amounts to inappropriate development in the GB and has resulted in a limited reduction in openness. The harm to the GB has, therefore, to be afforded substantial weight. The harm caused to the character and appearance
of
the area, by contrast, is limited and I have afforded this only limited weight.
36. Against the harm identified it is necessary to weigh the other considerations advanced by the appellant. I have found that there is a persistent unmet need
for
pitches in the borough, that the
Council
does not currently have a five year supply
of
pitches, and is unlikely to have one before 2015, and that there is currently no suitable available alternative site
for
the family occupying the appeal site to move to. I have afforded these matters significant weight.
37. These other considerations, coupled with the personal circumstances
of
the occupants
of
the appeal site and the fact that they would be required to vacate the site were the appeals to fail, with all the hardship this would entail, have to be balanced against the general public interest
of
upholding the planning policies applicable to the area. In my judgment, the public interest in pursuing the legitimate aims
of
protecting the GB from inappropriate development could be adequately protected by granting temporary planning permission
for
a period
of
3 years, as suggested by the
Council
, personal to the current occupants.
38. Taking all
of
these 'other considerations' together, I find that very special circumstances exist to clearly outweigh the harm to the GB. My decision would strike a balance between the interference
of
the family's rights under Article 8
of
the Human Rights Act 1998 and allowing time
for
the
Council
to identify the required 5 year supply
of
gypsy and traveller pitches and deliver a range
of
alternative sites in the borough. The other conditions suggested by the
Council
, which I discuss below, would further limit the harm to the GB caused by the appeal development."
- The inspector, therefore, recommended allowing the appeal and granting planning permission. In case the
Secretary of State
disagreed with that recommendation, he also considered the question
of
whether the time
for
compliance with the enforcement notice was too short. He concluded that it was because
of
the difficulties in finding a suitable alternative site in the area. He recommended that the time
for
compliance be varied from nine months to eighteen months.
The
Secretary of State
's Decision.
- By letter dated 19 December 2013, the Defendant gave his decision on the appeals. He disagreed with the inspector's recommendation that the appeal against the refusal
of
planning permission should be allowed. He decided that the appeal should be dismissed and planning permission refused.
- Dealing with the individual considerations first, the
Secretary of State
agreed that the development would constitute inappropriate development in the Green Belt. He, too, concluded that, given the current level
of
unmet need, the
local
planning authority did not have a five year supply
of
Gypsy and Traveller sites and there had been a long standing failure to meet that need. He considered that those matters lent significant weight in favour
of
the appeal
- In relation to personal circumstances and human rights issues, the Defendant considered that:
"11. The
Secretary of State
has given careful consideration to the appellant's personal circumstances, and has given significant weight to the best interests
of
the children as a primary consideration. He has also taken account
of
the fact that the appellant's daughter has a medical condition requiring regular treatment and that there is a level
of
mutual support and dependency between her and the appellant. He also notes that the
Council
does not dispute that the occupants
of
the site need to live in a caravan close to the appeal site and,
for
the reasons given by the Inspector, the
Secretary of State
agrees with him that Walnut Tree Farm would not provide a suitable alternative. The
Secretary of State
also agrees with the Inspector 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
acknowledges that this would amount to interference with the family's rights under Article 8
of
the European Convention on Human Rights (ECHR), and this is a matter which he considers in the overall balance below."
- Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal
of
permanent planning permission, the Defendant's essential reasoning, building on the matters referred to earlier in his decision letter, are, essentially, contained in the following paragraphs:
"12. The
Secretary of State
agrees with the Inspector that there would be substantial harm to the GB by reason
of
inappropriateness and the limited reduction in openness, while the harm caused to the character
of
the area is limited and so should be afforded limited weight. Against this harm, he also agrees with the Inspector that the persistent unmet need
for
sites within the Borough, the lack
of
a five year supply
of
pitches, and the lack
of
suitable alternative permanent sites
for
the occupiers all carry significant weight in favour
of
the appeal.
13. 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. Although in this case he considers that the unmet need
for
sites and the personal circumstances
of
the appellant and the occupants, including the best interests
of
the children, carry significant weight in favour
of
the proposal, he does not consider this, in itself, sufficient to outweigh the harm to the GB and other harm so as to comprise the very special circumstances necessary to justify the appeal proposal. 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 Defendant also concluded that refusal
of
planning permission would not involve a breach
of
Article 8 ECHR
for
the following reason:
"In coming to this conclusion, the
Secretary of State
acknowledges that the impact
of
this decision would interfere with the occupiers home and family life and the peaceful enjoyment
of
their property, which are protected by Article 8 and Article 1
of
the First Protocol
of
the ECHR, and he has taken account
of
the rights
of
the children involved as a primary consideration. He has given this substantial weight. He has gone on to weigh this against the wider public interest, including the need to protect the GB and the countryside from harm and, unlike the Inspector (IR38), he concludes that dismissing the appeals against refusal
of
permanent planning permission would strike an appropriate and fair balance."
- In relation to the decision to refuse temporary planning permission, the Defendant's reasons were as follows:
"The
Secretary of State
has gone on to consider the Inspector's conclusions with regard to temporary permission at IR37-38. He agrees with the Inspector that, in terms
of
the advice in paragraph 25
of
the [Traveller Sites Policy], the absence
of
an up-to-date 5 year supply
of
deliverable sites is a significant material consideration in favour
of
the appeal. However, in the circumstances
of
this case, he considers that the harm to the GB would continue to carry substantial weight even in the case
of
a 3 year temporary permission as recommended by the Inspector. He considers that the harm to the GB would remain substantial and, although he accepts that it would come to an end when any temporary permission expired, he does not consider that it would thereby be outweighed by the other considerations advanced in favour
of
the development."
- The overall conclusion is expressed in the following terms:
"Although the
Secretary of State
considers that the unmet need
for
sites and the needs
of
the occupants carry significant weight in favour
of
the proposal, he does not consider that these factors, either individually or taken together, are sufficient to clearly outweigh the harm to the GB and other harm so as to amount to the very special circumstances needed to justify granting permanent consent. He therefore considers that the appeals under section 78 and under section 174 ground (a) should be dismissed and the appeal under ground (g) should succeed with the compliance period varied from nine months to 18 months to allow time
for
the occupiers to look
for
alternative accommodation."
- The Defendant therefore dismissed that appeal and refused planning permission. In relation to the appeal against the enforcement notice, he dismissed the appeal on the ground in section 174(2)(a)
of
the 1990 Act (that planning permission should be granted
for
the development). He allowed the appeal on the ground that the time
for
compliance was too short and varied that from nine months to eighteen months from the date that the enforcement notice took effect, that is to 17 August 2015.
The Legal Proceedings
- All five claimants challenge the decisions dismissing the appeal against the refusal
of
planning permission by applications made under section 288
of
the 1990 Act. In addition, Mrs Doran and Mrs Lee seek permission to appeal against the dismissal
of
their appeals against the enforcement notice under section 289
of
the 1990 Act.
THE ISSUES
- Although the grounds have been expressed differently at different times, the principal issues as they emerged from the claim forms, the skeleton argument and oral submissions are, in essence, as follows:
(1) Is the policy
of
the Defendant to direct that appeals in cases involving Traveller and Gypsy sites in the Green Belt be determined by the Defendant rather than by an inspector unlawful as it is incompatible with Article 6 and 14
of
the ECHR, or the duty contained in section 149
of
the Equality Act 2010?;
(2) Were the individual decisions to dismiss the appeals against the refusal
of
planning permission unlawful because they breached Article 14 ECHR?
(3) Were any
of
the decisions in any
of
the five individual cases perverse or irrational or did they involve:
(a) Any failure to take account
of
the unmet need
for
, and the lack
of
a five year supply
of
alternative sites,
for
Travellers and Gypsies?; or
(b) Any failure lawfully to assess the needs
of
any
of
the Claimants or their families?; or
(c) A disproportionate interference with the rights
of
Claimants and their families so that the decisions were incompatible with Article 8 ECHR?; or
(d) In relation to the 1st, 2nd and 3rd Claimants, any failure to have regard to the fact that the likely location
of
any alternative new Gypsy or Traveller site in the relevant
local
planning authority area would be in the Green Belt?;
(e) In relation to the 2nd Claimant, any error in concluding that the proposed development (i) involved encroachment into the countryside or (ii) conflicted with the relevant development plan policy relating to the AONB?;
(f) In relation to the 5th Claimant, any error in concluding that there would be harm arising from the loss
of
trees on the site?
THE FIRST ISSUE – THE JULY 2013 MINISTERIAL ANNOUNCEMENT
The Challenge to the Policy, and the Directions that Traveller and Gypsy
Appeals in the Green Belt Be Determined by the
Secretary of State
- Mr Masters on behalf
of
the first four claimants first sought to challenge the lawfulness
of
the policy announced on the 1 July 2013 that consideration would be given to directing that the
Secretary of State
determine any appeal involving a Traveller or Gypsy site in the Green Belt. Mr Masters' essential submission was that this involved unjustified differential treatment
of
Travellers and Gypsies as compared with those seeking planning permission
for
conventional housing in the Green Belt whose appeals may be determined by inspectors not the
Secretary of State
. He submitted, in effect, that that was to treat people differently by reason
of
their race or ethnicity. It would involve, he submitted, applying different procedures to Travellers and Gypsies as compared with persons who were not Travellers or Gypsies.
- That, Mr Masters submitted, amounted to a breach
of
Article 14 ECHR. Article 14 ECHR is headed "Prohibition
of
Discrimination" and provides that
"The enjoyment
of
the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
- Further, Mr Masters submits that the decision to change the criteria
for
calling in appeals involving Travellers and Gypsies seeking planning permission
for
sites in the Green Belt involved a breach
of
the public sector equality duty in section 149
of
the Equality Act 2010 which provides, so far as material, that:
"(1) A public authority must, in the exercise
of
its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality
of
opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it"
- Mr Masters submits that there is no evidence at all from the Defendant to indicate that he did have due regard to that need before the making
of
the ministerial announcement.
- There are two difficulties with Mr Masters' challenge to the 1 July 2013 announcement to alter the criteria by which decisions were taken as to whether or not to direct that appeals be determined by the
Secretary of State
.
- First, in relation to three
of
the claimants that he represents, the decisions were taken before the 1 July 2013. In the cases
of
Mr Edward
Connors
, Mr Miley
Connors
and Mr Sines, the decisions were taken on the basis
of
the pre-existing policy that appeals involving significant development in the Green Belt would be determined by the
Secretary of State
. There is no challenge to the lawfulness
of
that earlier policy. In the case
of
these three claimants, therefore, the decision that their appeals be determined by the
Secretary of State
were not influenced by 1 July 2013 announcement. The lawfulness
of
the directions in their cases cannot have been affected by any alleged flaw in the later ministerial announcement.
- In relation to the fourth Claimant, Mrs Doran, the Defendant directed that her appeal be determined by him on 16 August 2013, that is after the 1 July 2013 ministerial announcement. Her appeal would not, it seems, have been called in
for
determination by the
Secretary of State
himself under the previous policy. In Mrs Doran's case, however, there other are other reasons why the current proceedings are not ones in which she (or,
for
that matter, the other claimants) can challenge either the 1 July 2013 ministerial announcement or the direction that the appeal be determined by the
Secretary of State
rather than an inspector appointed
for
that purpose.
- Mrs Doran brings two claims. The first is an application under section 288
of
the 1990 Act. That section sets out a statutory procedure whereby the High Court may consider an application to quash certain orders and actions. The procedure applies to the orders and action set out in section 284(2) and (3)
of
the 1990 Act. Those do not include decisions under section 79
of
, and paragraph 3
of
Schedule 6 to, the 1990 Act, to direct that an appeal is to be determined by the
Secretary of State
rather than an inspector. Nor do they include policies governing the criteria by which such directions are to be made. An application under section 288
of
the 1990 Act is not, therefore, an available means
of
challenging such directions or policies.
- It would, in theory, be open to the court to direct that the claim form in the section 288 proceedings stand as a claim form in judicial review proceedings (where the court could, in principle, consider the lawfulness
of
the ministerial announcement or the direction that the appeal be determined by the
Secretary of State
himself). In my judgment, however, it would not be appropriate, at this late stage in proceedings, to seek to turn a challenge to the substantive decision on the appeal against the refusal
of
planning permission into a challenge on the different question
of
the procedure governing how such appeals will be decided. Any challenge to that policy, or the direction that the appeal be determined by the
Secretary of State
, should have been made promptly and in any event within 3 months
of
the policy or direction under challenge. Evidence would have been required to deal with such challenges. It is not appropriate, given the stage which the challenge to the decision
of
5 March 2014 dismissing the planning appeal has now reached, to seek to distort that claim and turn it into a challenge to a policy announced on 1 July 2013 or a direction given on 16 August 2013 that Mrs Doran's appeal be determined by the
Secretary of State
.
- The second claim is an application
for
permission to appeal against the decision dismissing the appeal against the enforcement notice. Pursuant to section 289
of
the 1990 Act, an appeal can be made where the
Secretary of State
gives "a decision in proceedings on an appeal under Part VII" that is, an appeal against an enforcement notice. In my judgment, the ministerial announcement was not such a decision. It was a statement as to how the
Secretary of State
would approach the exercise
of
his discretion under paragraph 3
of
schedule 6 to the 1990 Act.
- Mr Whale, on behalf
of
the
Secretary of State
, also submitted in his skeleton argument that there was no jurisdiction to entertain a challenge to a direction on an appeal under section 289
of
the 1990. In my judgment, that is not correct. That section provides
for
an appeal against a decision "in proceedings on an appeal under Part VII", that is, a decision in an appeal against an enforcement notice. In this section, "decisions" include a direction: see section 289(7)
of
the 1990 Act. The 3rd Claimant could, in principle, have sought permission to appeal against the direction
of
16 August 2013 as that was a decision given in proceedings on an appeal under Part VII
of
the 1990 Act. In principle, the court would have had jurisdiction to hear an appeal under section 289
of
the 1990 Act against a direction that the appeal be determined by the
Secretary of State
not a person appointed by him.
- The difficulty with treating this appeal as an appeal against the direction
of
16 August 2013 is, in fact, a different one. Any application
for
permission to appeal would have had to be made within 28 days after notice is given
of
that decision: see CPR Practice 52D para. 26.1. The claim form here was not issued until 2 April 2014, over seven months after the direction was given. If Mrs Doran had wished to use an appeal under section 289 to challenge the direction, and to raise the procedural issue
of
who was to determine her substantive appeal, she should have sought permission to appeal within 28 days
of
the direction being given on 16 August 2013. It would not be appropriate now to permit a late challenge to the direction that the
Secretary of State
determine the appeal given that the challenge is brought very late and, indeed, after the substantive appeal has been heard and determined. It would not be appropriate now, in my judgment, to seek to distort a challenge to the substantive decision on the planning appeal, given on 5 March 2014, to accommodate a different legal challenge, namely to the direction given on 13 August 2013, essentially as a vehicle to challenge the lawfulness
of
the ministerial announcement
of
the 1 July 2013. I am satisfied that declining to allow a late appeal against the direction
of
13 August 2013 will not result in any injustice in Mrs Doran's case. The lawfulness
of
the actual substantive decision to dismiss the appeal against the enforcement notice and to refuse planning permission will be the subject
of
careful scrutiny in these proceedings. Similar considerations apply in relation to Mr Sines and his appeal against the enforcement notice in his case.
- Furthermore, I was informed during the hearing that legal aid has been given to another individual to enable that individual to bring judicial review proceedings in relation to the direction that her appeal be determined by the
Secretary of State
. The wider issues surrounding the lawfulness
of
the
Secretary of State
's approach would, in my judgment, be better considered in proceedings brought
for
that purpose.
For
completeness, I note that Mr Masters submitted that there was no other appropriate remedy to deal with challenges to the policy, or the direction that a planning appeal be determined by the
Secretary of State
. He therefore submitted that section 288 or section 289
of
the 1990 Act ought to be interpreted in a way which enabled the court in these proceedings to deal with any allegation
of
breach
of
Articles 8 or 14 ECHR in relation to the directions that the appeals be determined by the Defendant. He relied on, amongst other authorities, R (Alconbury Developments Ltd)
v Secretary of State for
the Environment, Transport and the Regions [2003] 2 AC 295. In my judgment, the argument is misconceived. There were other available mechanisms by which the High Court could have considered whether the ministerial announcement or the direction in Mrs Doran's case involved any breach
of
her Convention rights. She chose not to bring such proceedings. The current proceedings, in the form
of
a section 288 application and an appeal under section 289
of
the 1990 Act in relation to the decision
of
5 March 2014 to dismiss the planning appeals are not appropriate mechanisms
for
seeking to challenge a policy announced on 1 July 2013 or a direction given on 16 August 2013 that her appeal be determined by the
Secretary of State
.
- There was also a submission by Mr Masters that there was a breach
of
Article 6 ECHR in that the
Secretary of State
was not a fair and independent tribunal to determine the substantive planning appeals. Again, reliance was placed upon the Alconbury decision. In terms
of
assessing whether there is a breach
of
Article 6, consideration needs to be given to the system as a whole. The decisions
of
the
Secretary of State
will be subject to review by the courts. So far as any factual issues are concerned, the inquiry before the inspector enabled the parties to produce all the factual material that they wished. The inspector set out the relevant facts in each case. None
of
the Claimants are suggesting that the facts, based on the evidence they produced, have been inaccurately stated. The issues are whether the decisions on the overall planning balance, given those facts, are correct as a matter
of
law and whether the decisions are compatible with the Claimants' Convention rights. This court is able to deal fully with those issues. The complaint
of
a breach
of
Article 6 is not therefore made out.
The Challenge to the Decisions to Dismiss the Appeals
- Mr Masters, on behalf
of
the first four claimants, also submitted that the approach to dealing with appeals by Travellers and Gypsies in relation to sites in the Green Belt led to unfairness and a breach
of
Article 14 ECHR in terms
of
the substantive decisions reached in these appeals. He submitted that the policy led to the application
of
different and stricter standards in relation to decisions involving Travellers and Gypsies in Green Belt cases as compared with cases involving non-Travellers and Gypsies seeking conventional housing in the Green Belt. The evidence in this case, he submitted, disclosed a clear difference in treatment between Gypsies and Travellers and non- Gypsies and Travellers in terms
of
granting or refusing planning permission
for
development in the Green Belt and, further, he submits that that differential treatment is unjustified.
- This Court has jurisdiction to determine whether the decisions dismissing the appeals in individual cases do or do not involve any element
of
discrimination contrary to Article 14 ECHR. Equality
of
treatment is a fundamental value underlying both the law
of
England and Wales and the European Convention on Human Rights. Allegations
of
discriminatory treatment need careful scrutiny. That, perhaps, is particularly important where, as here, the court is dealing with ethnic groups with a particular traditional life style which is not always understood or appreciated by the wider community. Equally, it is important that courts proceed on the evidence before them and reach decisions based on the law and that evidence.
- Against that background, it is important to consider carefully the evidence and the submissions. Mr Masters' underlying claim is that different, stricter criteria are being applied to Travellers and Gypsies seeking planning permission to station caravans and mobile homes in areas
of
the Green Belt as compared with those seeking conventional housing who are not Travellers or Gypsies. Mr Masters sought to establish that contention by the following steps.
- First, his initial contention in his skeleton argument was that since the 1 July 2013 announcement the evidence disclosed that not one Traveller or Gypsy site in the Green Belt had been granted planning permission on an appeal determined by the
Secretary of State
. The statistical evidence produced in this case is contained in the second witness statement
of
Ms Joanna Grigson. Details were obtained from the planning inspectorate
of
all appeals relating to Traveller and Gypsy sites in the five years to mid-May 2014. From that information, Ms Grigson was able to identify that 33 appeals involving Gypsy and Traveller sites in the Green Belt were determined by the
Secretary of State
on or after 1 July 2013. In two appeals, the
Secretary of State
allowed the appeal and granted permanent planning permission
for
Gypsy and Traveller Sites. In three appeals, the Defendant granted temporary planning permission
for
such a site. There may be issues in relation to the statistical robustness
of
these figures, given they involve a limited number
of
appeals over a short period
of
time. The figures, however, do not support the initial contention that in no case has the Defendant granted planning permission
for
a Gypsy or Traveller site in the Green Belt since the 1 July 2013. He has done so in five
of
the 33 appeals which he has determined.
- Next, Mr Masters sought to interpret the limited statistics as indicating that the
Secretary of State
routinely reached decisions that were less favourable on appeal than inspectors. The limited statistics can be interpreted in different ways. In fact, in 17
of
the 33 appeals, the inspector recommended dismissal
of
the appeal and the
Secretary of State
agreed. In two cases, the inspector recommended allowing the appeal and granting permanent permission and the
Secretary of State
agreed that the appeals should be allowed (albeit in one case
for
5 pitches instead
of
7). In three appeals, the inspector recommended allowing the appeal and granting temporary permission and the
Secretary of State
agreed that the appeal should be allowed albeit granting temporary permission
for
a shorter period than that recommended. In two other appeals, the inspector recommended allowing the appeal and granting permanent permission and in the remaining 9 the inspector recommended allowing the appeal and granting temporary permission. In these 11 out
of
the 33 appeals, the
Secretary of State
disagreed with the inspector.
- In my judgment, it is not possible to derive from these statistics any evidence, still less any firm evidence, that there is differential treatment in the outcome
of
appeals in relation to Gypsy and Traveller sites in the Green Belt as compared with non-Gypsy and Traveller appeals. First, and foremost, there is simply no evidence as to the position in relation to non-Gypsy and Traveller appeals in the Green Belt. There is no information as to how many such appeals there were (pre or post 1 July 2013). There is no information as to what the outcome
of
those appeals were (again pre or post 1 July 2013). There is simply no evidence available in these proceedings, therefore, enabling a comparison to be made
of
the position in relation to Gypsy and Traveller appeals and non-Gypsy and Traveller appeals in Green Belt sites. Even if a statistical comparison could be made, careful consideration would need to be given as to the reasons
for
any apparent different treatment to determine whether or not it was justified. That stage, however, is not even reached in the present case. No evidence has been produced in this case that there is any differential treatment in terms
of
the outcome
of
Gypsy and Travellers appeals in Green Belt cases as compared with non-Gypsy and Traveller appeals.
- Furthermore, it should be noted that the statistical information produced in this case does not itself even enable the inference to be drawn that Gypsies and Travellers in Green Belt cases are obtaining permission in fewer cases following 1 July 2013 than they did before. The appeals would have been in two groups. Those appeals involving significant development (3 pitches or 6 caravans or more) would have been determined by the
Secretary of State
prior to 1 July 2013. Those involving fewer pitches or caravans would have been likely to have been determined by an inspector. There is no evidence before this court as to the number
of
cases in which inspectors, prior to 1 July 2013, were allowing appeals and granting either permanent or temporary planning permission
for
a Gypsy or Traveller site in the Green Belt. There is no statistical evidence to determine if there has been a significant change in the outcomes
of
appeals and the grant
of
planning permissions since 1 July 2013. Mr Masters adduced evidence from three individuals who had experience with appeals in Gypsies and Travellers' cases. Those three witnesses offered their own personal views, based on their limited experience, without adducing any appropriate data or information to support their personal views. Their witness statements were not
of
assistance in dealing with this case. However, even assuming that there has been a change in the proportion
of
Gypsy and Traveller appeals in Green Belt cases succeeding in obtaining some form
of
planning permission on appeal post 1 July 2013, that still does not enable any form
of
comparison to be made with the position in relation to non-Gypsy and Traveller appeals in such cases.
- As stated, cases must be determined on the evidence available. In my judgment, the evidence produced in these cases does not establish any differential treatment in terms
of
the decisions on appeals by Travellers and Gypsies in relation to sites in the Green Belt as compared with non-Gypsy and Traveller appeals in such cases.
- Mr Masters final point on this aspect
of
the case was that paragraph 25
of
the Traveller Sites Policy provides that the fact that a
local
planning authority cannot deliver a five-year supply
of
sites is a significant factor when considering applications
for
temporary planning permission whereas, in relation to conventional housing, the lack
of
a five-year supply is a factor favouring permanent planning permission.
- There are a number
of
difficulties with Mr Masters' submission. First, and foremost, it is clear from the decision letter in all five cases that the Defendant did treat the fact that there was an unmet need and the absence
of
a five year supply
of
deliverable sites as a significant material consideration in favour
of
each
of
the five appeals both so far as permanent and temporary planning permission was concerned. However, the issue was the overall balance
of
factors including the unmet need and the absence
of
a five year supply
of
sites. There was no discriminatory failure to have regard to the absence
of
a five year supply
of
Gypsies and Traveller sites.
- Furthermore, and more generally, I doubt whether it is correct to treat paragraph 25
of
the Traveller Site Policy as evidencing unjustified differential treatment against Gypsies and Travellers in the way advanced by Mr Masters. Paragraph 25, as is clear from paragraph 28, contains a transitional policy which only applied to applications
for
planning permission made in the first 12 months after the Travellers Site Policy was adopted. The paragraph complained
of
did not, strictly, apply to the contested decisions. Secondly, I do not consider that the policy did discriminate in the way alleged. The policy in paragraph 25 appears to have been based on the view that, at least in the period after the introduction
of
the Travellers Site Policy, it should be made clear that the absence
of
a five year supply
of
sites was a significant material consideration when considering applications
for
the grant
of
temporary planning permission, presumably to give Travellers and Gypsies time to find alternative sites. In either event, paragraph 25 is, strictly, inapplicable (although the paragraph is still referred to in a number
of
the decisions). The position in relation to both Traveller and Gypsy sites and conventional housing in the Green Belt will, strictly, be the same. In both cases, the development will be inappropriate development. In both cases,
local
authorities should identify a five year supply
of
sites or land (see paragraph 9
of
the Traveller Sites Policy and paragraph 47
of
the Framework). If, as is likely, the absence
of
a five-year supply is seen as a material consideration in favour
of
granting planning permission, that has to be considered against the fact that the development would be in the Green Belt and there needs to be very special circumstances before it is approved. The ministerial announcement is to the effect that unmet need in both Traveller and Gypsy cases, and in conventional housing cases, is unlikely to be sufficient
of
itself to justify the grant
of
planning permission. The present position (notwithstanding the reference to paragraph 25
of
the Travellers Site Policy in decision letters) is, therefore, materially the same in respect
of
both Traveller and Gypsy sites and conventional housing. In any event, in the present cases, there was no differential treatment as the Defendant did consider the absence
of
a five year supply
of
sites as a material consideration.
THE CHALLENGES TO THE DECISIONS IN THE INDIVIDUAL CASES
- The five Claimants all contend that the decisions in their cases to dismiss the appeal and refuse permanent or at least temporary planning permission are unlawful. In addition, the Claimants contend that there are individual errors or flaws in their respective decisions. Furthermore, all five Claimants contend that the Defendant had failed properly to assess the personal circumstances
of
the claimant and his or her family and contend that refusal
of
permanent, or at least temporary planning permission would involve a breach
of
Article 8 ECHR.
The Principles Governing Challenges
- The principles governing challenges to planning decisions are well-established and set out in the decision in Seddon Properties Ltd.
v Secretary of State for
the Environment (1978) 42 P & C.R. 26. In particular, it is important to bear in mind that the courts determine whether or not, as a matter
of
law, a consideration is material and whether the
Secretary of State
has addressed his mind to that consideration. The weight to be attributed to a particular material consideration is, subject to any relevant guidance, a matter
of
planning judgment
for
the decision-maker: see Tesco Stores Ltd.
v Secretary of State for
the Environment [1995] 1 WLR 759 at paragraph 13. Further, allegations that a planning decision is perverse may be brought under sections 288 or 289
of
the 1990 Act but they are not an opportunity
for
a review
of
the planning merits, as opposed to the lawfulness,
of
a decision: see R (Newsmith Stainless Steel Ltd)
v Secretary of State for
Environment, Transport and the Regions [2001] EWHC (Admin) 74 at para. 6.
- In relation to the personal circumstances
of
the Claimant and his or her family and the claim that the decisions involved an infringement
of
their rights under Article 8 ECHR, that Article provides as follows:
"1. Everyone has the right to respect
for
his private and family life, his home and his correspondence.
"2. There shall be no inference by a public authority with the exercise
of
this right except such as in accordance with the law and is necessary in a democratic society in the interests
of
national security, public safety or the economic well-being
of
the country,
for
the prevention
of
disorder or crime,
for
the protection
of
health and morals, or
for
the protection
of
the rights and freedoms
of
others."
- Matters relating to personal circumstances and rights derived from Article 8 ECHR are material considerations to be considered in accordance with section 70(2)
of
the 1990 Act when considering whether to grant planning permission. As such, a decision maker must take such matters into account. Furthermore, a public body cannot act incompatibly with a Convention right such as Article 8 ECHR. If the court concluded that a decision
of
the Defendant was incompatible with Article 8, then the decision would be unlawful.
- The proper approach to dealing with these issues in the planning context is set out in the judgment
of
Hickinbottom J. in Stevens
v Secretary of State for Communities
and
Local Government
[2013] EWHC 792 (Admin). The approach
of
a planning decision-maker is set out at paragraphs 47 to 68 and these principles are usefully summarised in paragraph 69
of
that judgment in the following terms:
"i) Given the scope
of
planning decisions and the nature
of
the right to respect
for
family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account.
"ii) Where the article 8 rights are those
of
children, they must be seen in the context
of
article 3
of
the UNCRC, which requires a child's best interests to be a primary consideration.
"iii) This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with those
of
his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and properly represent and evidence the potential adverse impact
of
any decision upon that child's best interests.
"iv) Once identified, although a primary consideration, the best interests
of
the child are not determinative
of
the planning issue. Nor does respect
for
the best interests
of
a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests
of
the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.
"
v
) However, no other consideration must be regarded as more important or given greater weight than the best interests
of
any child, merely by virtue
of
its inherent nature apart from the context
of
the individual case. Further, the best interests
of
any child must be kept at the forefront
of
the decision-maker's mind as he examines all material considerations and performs the exercise
of
planning judgment on the basis
of
them; and, when considering any decision he might make (and,
of
course, the eventual decision he does make), he needs to assess whether the adverse impact
of
such a decision on the interests
of
the child is proportionate.
"vi) Whether the decision-maker has properly performed this exercise is a question
of
substance, not form. However, if an inspector on an appeal sets out his reasoning with regard to any child's interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision-maker reached the decision that the adverse impact to the interests
of
the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact
of
the decision he has reached on the best interests
of
the child, and has concluded that that impact is in all the circumstances proportionate."
Mrs Lee's Claim
- Against that background, it is helpful to consider Mrs Lee's challenge to the decision in her particular case as the grounds there raise a number
of
general issues.
- Both the inspector and the Defendant considered that the proposed development was inappropriate development which would by definition cause harm to the Green Belt. Both considered that permanent planning permission should not be granted
for
the development. No challenge is made to that decision. Rather, Mrs Lee challenges the refusal to grant temporary planning permission. Mr Willers Q.C., on her behalf, advances a number
of
reasons why the refusal
of
temporary planning permission was unlawful.
- First, ground 1 contends that the decision was irrational. It is sensible to consider the individual matters relied upon as part
of
ground 1 and then assess the consideration
of
the overall planning balance. Mr Willers submits that the level
of
harm arising from this particular development, other than by inappropriateness, was minimal and it was difficult to conceive
of
a Gypsy site in the Green Belt which would cause less harm. Hence, he submits it was irrational to refuse even temporary planning permission in the present case, given, particularly the unmet need
for
Gypsy and Traveller sites, the lack
of
a five year supply
of
sites and the personal circumstances
of
Mrs Lee and her family.
- In my judgment, that approach to assessing harm does not properly reflect the policy framework. In summary, the essential characteristics
of
the Green Belt are its openness and permanence. Inappropriate development is, by definition, harmful as it damages the openness
of
the land in the Green Belt and that must be given substantial weight when considering the application
for
planning permission. Furthermore, the proposed development may cause additional harm by undermining one or more
of
the five purposes
of
the Green Belt. Paragraph 88
of
the Framework provides that substantial weight should be given to the fact that the proposed development involves inappropriate development in the Green Belt and should only be approved in very special circumstances, that is, where the harm to openness caused by the inappropriate development, and any additional harm, is "clearly outweighed by other considerations". That policy is expressly said to apply to Traveller and Gypsy sites (whether temporary or permanent): see paragraph 14
of
the Traveller Sites Policy. As Green J. put the matter in Timmins
v
Gedling Borough
Council
[2014] EWHC (Admin) 654 any development:
"harms openness quite irrespective
of
its impact in terms
of
its obstructiveness or its aesthetic attractions or qualities. A beautiful building is still an affront to openness, simply because it exists. The same applies to a building that is camouflaged or rendered unobtrusive by felicitous landscaping."
- In Mrs Lee's case, the decision-maker was dealing only with the harm that arose from the impact on openness. In that context, the starting point was that the development, even on a temporary basis, would be inappropriate development. It would cause harm. It should not be approved save in very special circumstances.
- The Defendant did not, therefore, err in law in taking the view that substantial weight should be attached to the harm to the Green Belt that even a temporary grant
of
planning permission would cause. That would still involve permitting inappropriate development which would harm the openness
of
the Green Belt.
- Next, Mr Willers emphasises the unmet need
for
Gypsy and Traveller sites, and the lack
of
a five year supply
of
pitches, in the borough. The Defendant did expressly take that into account. He saw that as a material consideration and he considered it to be a significant factor in favour
of
allowing the appeal. The approach
of
the Defendant, however, is that unmet need alone is unlikely to justify the grant
of
planning permission in the Green Belt. There is nothing intrinsically unlawful about that approach. The difficulty is that there are two competing considerations. On the one hand there is the aim
of
preserving the Green Belt and the rights and interests
of
the wider public. On the other, there is the aim
of
respecting the Gypsy and Traveller way
of
life and ensuring that there are places where they may be able to pursue that lifestyle.
Local
planning authorities,
for
whatever reason, have not always provided sufficient sites and have not always ensured that there will be a sufficient supply
of
sites available
for
Gypsies and Travellers. They have not always complied with their statutory duties to assess need. That means that, as a matter
of
judgment, the decision-maker will have to weigh up the preservation
of
the Green Belt against the fact that
local
authorities may not be ensuring the availability
of
sufficient sites
for
Gypsies and Travellers. There is nothing intrinsically unlawful about an approach that says that, subject to other considerations, unmet need is unlikely
of
itself to justify development in the Green Belt. That involves a hard choice between two less than perfect situations: allowing inappropriate development in a limited, and environmentally important resource, or not resolving the immediate problems arising out
of
the fact that some
local
planning authorities have consistently failed to provide the necessary number
of
Gypsy and Traveller sites and have failed to have a sufficient 5 year supply
of
such sites
for
the future.
- Mr Willers also submits that the way in which the Defendant dealt with the personal circumstances
of
Mrs Lee and her family, and the best interests
of
the children, together with the other considerations, further demonstrate that the decision to refuse temporary planning permission was irrational or perverse as an aspect
of
ground 1
of
the claim. Grounds 5 and 6 also make specific complaints about the way in which the Defendant dealt with the refusal
of
temporary planning permission and the rights
of
Mrs Lee and her family under Article 8 ECHR. It is convenient to consider this aspect
of
ground 1, and grounds 5 and 6 together.
- Mr Willers submitted that the best interests
of
the child are a primary consideration and no other consideration could be given inherently more weight than that consideration. He submitted that the decision letter attributed "significant weight" to the best interests
of
the children. The harm to the Green Belt was given substantial weight. Mr Willers therefore submitted that the Defendant had erred in his approach or alternatively failed to give adequate reasons
for
his conclusion.
- Dealing first with the facts, Mrs Lee's position is that she wished the site to be available
for
her daughter and son-in-law and their two young children and their baby. Mrs Lee's daughter has medical needs and there would be an adverse effect on her health if she could not see her current doctor. The children's continuing education would be adversely affected. Mrs Lee lives in a house and her daughter did until, it seems, she married. Mrs Lee's son-in-law who is also a Romany Gypsy, has always lived in a caravan as part
of
his traditional lifestyle and has an aversion to bricks and mortar. The family would be likely to have to move to another unauthorised campsite if the appeal was dismissed to the detriment
of
the daughter's health and the children's education.
- The Defendant first identified and dealt with the material considerations relevant to this aspect
of
the appeal. In particular he referred to the interests
of
the children as a primary consideration. He considered that they carried "significant weight" in favour
of
allowing the appeal. In my judgment, the approach
of
the Defendant accords with the approach set out in Stevens. He sought to identify what the best interests
of
the children were. At the stage
of
identifying the material considerations and assessing their importance or significance individually, the Defendant recognised that the best interests
of
the children were a primary consideration and they must have significant weight when it came to considering those considerations against other considerations. He recognised, too, that policy guidance required him to treat the harm to the Green Belt as a material consideration to which substantial weight had to be given. That reflects the words used in the policy. The different forms
of
expression – significant weight as a primary consideration and substantial weight - do not, in my judgment, indicate that the Defendant treated at this stage, the best interests
of
the children as in some way having intrinsically less weight than any other consideration such as the protection
of
the Green Belt. Rather, he was identifying, correctly, the considerations and the importance
of
each.
- At the next stage, the Defendant had to assess the overall balance and reach a conclusion given these competing considerations. His decision was that the best interests
of
the children, the personal circumstances
of
the family, the unmet need and the lack
of
five year supply were not sufficient, collectively, to outweigh the harm to the Green Belt. Leaving to one side the question
of
compatibility with Article 8 ECHR, that is an acceptable approach to the purely domestic law issue
of
considering all material considerations, including the interests
of
the children as a primary consideration, and deciding whether all the matters that pointed in favour
of
an appeal did justify the grant
of
temporary planning permission in the Green Belt. It cannot be said as a matter
of
purely domestic planning law that the judgment that the Defendant reached was irrational or unlawful. Nor were the reasons inadequate or unclear.
- In addition, the court needs, itself, to consider whether the decision to refuse planning permission was compatible with Article 8 ECHR. In my judgment, the decision is compatible with Article 8 ECHR. Mrs Lee and her family are entitled to respect
for
their private and family life and their home. Any interference with those rights would need to pursue a legitimate aim and be proportionate. I bear in mind the decisions
of
the European Court
of
Human Rights in this area, including Chapman
v
United Kingdom (2001) 33 EHRR 399. There is a legitimate aim here namely the protection
of
the rights
of
others in terms
of
environmental protection (see Chapman at paragraph 103). In terms
of
proportionality, that aim has, in my judgment, a very high value in the present case involving as it does inappropriate development which is harmful to the Green Belt. That is an area earmarked
for
particular environmental protection to safeguard its openness on a permanent basis. The boundaries
of
the Green Belt have been developed and carefully identified over time. Further, the caravan was sited on the land without any planning permission and its presence there is unlawful. That is a factor which is also relevant in assessing the proportionality
of
the interference: see Chapman at paragraph 102.
- 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.
- Ground 1, included, and Ground 3 alleged that there was a particular error in the Defendant's reasoning. The submission is that the inspector had not found that the development caused any harm to the character or the appearance whereas the Defendant thought he had and gave that harm some additional weight. In my judgment, the inspector was finding at paragraph 16
of
his report that some trees (albeit not protected ones) had been removed at the development site but that only resulted in limited harm to the overall character and appearance
of
the area. The inspector confirmed that at paragraph 35
of
his report and gave that harm limited weight. The Defendant correctly noted this fact in paragraph 12
of
his decision letter which refers expressly to paragraph 35
of
the inspector's report. There was no error in this respect on the part
of
the Defendant.
- Ground 4 concerns the ministerial announcement
of
1 July 2013. Mr Willers, on behalf
of
Mrs Lee, made it clear that he was not seeking to challenge the ministerial announcement, or the direction in Mrs Lee's case that the appeal be determined by the
Secretary of State
. Rather, he submitted that the alleged difference in treatment between Romany Gypsies such as Mrs Lee, and non-Gypsies seeking conventional housing, entitles the court to infer that the Defendant is more inclined to refuse appeals in cases involving Gypsy and Traveller cases than non-Gypsy and Traveller cases.
For
the reasons given above in relation to the other Claimants' challenge on this issue, there is no basis
for
drawing such an inference on the evidence in this case.
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, amongst others, the decision in Wychavon District
Council v Secretary of State for Communities
and
Local Government
[2008] EWCA Civ 692. It also includes the decision
of
the High Court and the Court
of
Appeal in Moore
v Secretary of State for Communities
and
Local Government
[2013] 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, or the cases
of
the other claimants, that the courts identified in Moore.
For
these reasons, Grounds 1, 3, 4, 5 and 6 are not established. Ground 2 was abandoned at the hearing.
For
those reasons, the Defendant's decision to dismiss Mrs Lee's appeal and to refuse temporary planning permission is lawful. It was a decision that he was entitled to reach under the law.
The Cases
of
Mr Edward
Connors
, Mr Miley
Connors
, Mrs Doran and Mr Sines
- Mr Masters takes a number
of
points on behalf
of
these four Claimants. The first points concern alleged irrationality or perversity in the decisions. The matters said to evidence this perversity are these:
(1) allegedly failing to have regard to allegedly accepted breaches
of
Article 8 and 14 ECHR and failure to include those in the balancing exercise;
(2) allegedly considering the ministerial announcements
of
1 July 2013 and January 2014 as outweighing the accepted breaches
of
Article 8 and 14 ECHR;
(3) failing properly to address the needs
of
each Claimant and his or her family;
(4) failing to give appropriate weight to the best interests
of
the children;
(5) failure to consider the fact that temporary permission would involve only temporary harm.
- In my judgment, these submissions mischaracterise the decisions taken and fail adequately to describe the overall balancing exercise undertaken in these cases. This judgment explains above why a decision-maker is to regard temporary permission as harming the Green Belt and why the decision-maker is entitled to take the view that unmet need was not,
of
itself, likely to be sufficient to justify allowing an appeal and granting planning permission. The Defendant did not accept that there were breaches
of
Article 8 ECHR (or Article 14). Rather the Defendant found that there would be interference with the right to respect
for
private and family life within the meaning
of
Article 8(1) ECHR (and took that into account) but considered that the interference pursued a legitimate aim and was proportionate and so was justified under Article 8(2) ECHR: see paragraphs 23
of
the decision letter in Mr Edward
Connors
' appeal, paragraph 29 in Mr Miley
Connors
' appeal, paragraph 21 in Mrs Doran's appeal and paragraph 31 in Mr Sines' appeal. In other words, the Defendant did not treat these breaches as being outweighed by other matters: he considered that there were no breaches
of
Article 8 as any interference was justified under Article 8(2) ECHR.
- At the first stage
of
the exercise, the Defendant did identify the best interests
of
the children as a primary consideration: see,
for
example, paragraph 15
of
the decision on Mr Edward
Connors
' appeal, paragraph 21 in Mr Miley
Connors
' appeal, paragraph 21
of
Mrs Doran's appeal and paragraph 21
of
Mr Sines' appeal. The Defendant identified what the best interests
of
the relevant children required. Thereafter, at the second stage, the Defendant considered the balance
of
the competing considerations in the way described above in relation to Mrs Lee and in accordance with the approach in Stevens. None
of
the alleged errors in fact occurred.
- Mr Masters also submitted in relation to Mr Edward
Connors
, Mr Miley
Connors
and Mr Sines, the Defendant failed to have regard to the fact that any new Traveller or Gypsy site would be likely to be in the Green Belt. Large parts
of
the two boroughs in question were comprised
of
Green Belt (70% in the case
of Reigate
and
Banstead
and 83% in the case
of
Windsor & Maidenhead). First, the Defendant was aware
of
these matters. The inspector's report in each
of
the three cases drew attention to it. Secondly, the fact that the Defendant did not consider this a reason to allow the appeal is not irrational or perverse. Green Belt boundaries have been established over time. There are paragraphs in the Framework dealing with how extensions
of
the Green Belt ought to be dealt with. Even if any new sites were to be established in the Green Belt, they would be established in appropriate locations, identified following the approach set out in the Framework, and through the mechanism
of
the
local
plan process with the opportunities
for
full consideration
of
appropriate boundaries and public involvement that that involves. Thirdly, paragraph 15
of
the Traveller Sites Policy set out above provides that the Green Belt should only be altered in exceptional circumstances and then through the plan-making process not in response to an application
for
planning permission. There was therefore nothing irrational to refuse an appeal in relation to an application
for
planning permission by one (or more) appellants because other sites might emerge over time and they might be situated in an area
of
the Green Belt (although not necessarily,
of
course, the area where the appeal site is situated).
- In relation to Mr Miley
Connors
, Mr Masters took two specific points on the decision letter on his appeal. First, he submitted that the Defendant erred in considering that the proposed development would encroach upon the countryside and so undermine one
of
the five policies underlying the Green Belt. The inspector, he submitted, found that there would be an intensification
of
use
of
the area but not an expansion
of
the boundaries. To encroach is to intrude. Encroachment may involve an extension
of
boundaries so a proposed development would physically extend into the countryside. It may also involve a greater intensification (
for
example, in size, number or the use)
of
a particular area which intrudes more on the countryside. The Defendant did not err in concluding that the stationing
of
three mobile homes would lead to a moderate degree
of
harm to the purpose
of
safeguarding the countryside from encroachment.
- Finally, in relation to each
of
the four Claimants that he represents, Mr Masters submits, in essence, that the decision
of
the Defendant in relation to Article 8 ECHR is wrong. In my judgment, the Defendant approached the question
of
Article 8 in the correct way in each
of
the cases. He considered the personal circumstances
of
each Claimant and his or her family. He considered the best interests
of
the child as a primary consideration. He was aware that, to differing extents, the decisions would involve an interference with the rights under Article 8(1) ECHR
of
each
of
the Claimants but he considered that the interference pursued a legitimate aim, was proportionate and struck a fair balance.
- In my judgment, the decision in the case
of
each
of
the Claimants was compatible with Article 8 ECHR. Any interference with the rights
of
each
of
these Claimants and their families would need to pursue a legitimate aim. In each
of
these cases, that
of
Mr Edward
Connors
, Mr Miley
Connors
, Mrs Doran and Mr Sines, and their families, the decisions dismissing their appeals and refusing planning permission does pursue a legitimate aim, protecting the environment in the form
of
the Green Belt and thereby protecting the rights
of
the wider community in terms
of
environmental protection (see Chapman at paragraph 103). In terms
of
proportionality, that aim has, in my judgment, a very high value in the present case involving, as it does, development in the Green Belt. That is an area earmarked
for
particular environmental protection to safeguard its openness on a permanent basis. The boundaries have been developed and carefully identified over time. Further, none
of
the sites has planning permission and the stationing
of
any caravans on the land is at present unlawful. That is a factor which is also relevant in assessing the proportionality
of
the interference: see Chapman at paragraph 102.
- The decisions correctly identify the impact upon each
of
the Claimants and his or her family. The circumstances
of
each family is different. Where children were involved, the decision letter identifies, from the evidence provided, what is in their best interests. The best interests
of
a child are a primary consideration in conducting the exercise
of
deciding if any interference with the rights recognised by Article 8 ECHR is proportionate.
- In Mr Sines' case, he does not live on the site and it is not proposed that he would. The proposal is that there would be five pitches on the site which would be occupied in future by members
of
his extended family. They do not live at the site at present. One
of
the occupants would be one
of
Mr Sines' daughter who was shortly to be married and wanted a home
of
her own. Other occupants would be another daughter and her three children and a sister-in-law and her two sons (one
of
whom was also about to marry and wanted a home
of
his own). There was some suggestion at the inquiry that one
of
the proposed occupiers, Mr Sines' brother-in-law might have stayed on the site but the application
for
planning permission stated that the change
of
use had not started and the site was vacant. Neither Mr Sines nor any
of
the proposed occupants attended the inquiry to give evidence. They did not contend that refusal
of
the appeal would have any specific adverse impact on them by reason
of
their personal circumstance. They did rely on the fact that they were Romany Gypsies whose traditional way
of
life involved living in an extended family
- In the case
of
Mr Edward
Connors
, he lives in a house to the south
of
the site. It not proposed that he would live on the site. Rather, he will remain in his existing home and it is proposed that his extended family would occupy four
of
the pitches and two further pitches would provide accommodation in the future
for
children when they grew up. There would be four sets
of
occupants, three families with young children, and one adult. The evidence is that some
of
the family already spend some time living on the site, although there is no planning permission
for
the use
of
the site
for
the stationing
of
caravans. They also travel in England and Norway. The dismissal
of
the appeal is likely to mean that the families will continue their itinerant lifestyle and will lack a permanent base. The lack
of
a permanent site would not be in the best interests
of
the children. If they had a primary site, that could facilitate access to education in future (none
of
the children is, at present, it appears, attending school).
- In the case
of
Mr Miley
Connors
, the site would provide accommodation
for
three families. As is apparent from the inspector's report, the families did not provide much evidence
of
the impact
of
a refusal
of
planning permission on their appeal. One
of
the three families, Mr Eddie
Connor
, has health problems but he is currently living in a flat next to his mother, not on the site. There is nothing to suggest that the refusal
of
planning permission
for
a caravan would prevent him from continuing to live in his present flat. The evidence is that the impact on Eddie
Connors
will, therefore, be the fact that he will not be able to move to the site to live with his extended family. One couple, who have no children, have no permanent site on which to live. They spend some time travelling in Ireland and England. The impact on them will primarily be that they will not have a permanent site. One couple, Patrick and Ann Deleney, have children but one is aged 19 and is an adult. The other child is aged 14. That child will be
of
school age, although there is no detail given about schooling, and there must be a risk that not having a permanent site, with settled accommodation, would detrimentally affect her education. There is no evidence
of
any other actual or likely specific adverse affect on the child.
- In the case
of
Mrs Doran, she bought the site but did not have planning permission to station caravans on it. Despite that, she and her family have in fact occupied the site and lived there since 2007.
For
two years (between some time in 2010 and April 2012), she had a temporary planning permission to use the site with a view to her seeking an alternative site. The family includes her daughter and three grandchildren who are in school. The evidence is that access to
local
doctors, and in particular, education, would be made more difficult if the family could not continue to reside on the site. At the time
of
the decision, Mrs Doran's husband was alive but in deteriorating health and, sadly, has since died. The impact on the family would be that they would lose the place where they have in fact lived
for
about seven years. However, the fact is that they never had permanent planning permission to place caravans on this part
of
the Green Belt although it is right to note that they did have temporary planning permission
for
two years. The evidence is that there are no other alternative Traveller sites available.
- Given the importance
of
the legitimate aim and the need to strike a fair balance between the rights
of
the individual Claimant and his or her family members (including those Claimants where the best interests
of
children are involved and which are a primary consideration) and the wider community, I am satisfied that in all these cases the dismissal
of
the appeals and the refusal
of
planning permission was a proportionate means
of
pursuing a legitimate aim. The decisions are compatible with the Article 8 rights
of
Mr Edward
Connors
, Mr Miley
Connors
, Mrs Doran, Mr Sines and their families.
- Mr Masters also submitted that the decisions also involved breaches
of
the public sector duty in the Equality Act 2010. However, the decision letter in relation to the four Claimants he represents expressly addressed this issue (Mr Willers does not raise it as a ground in relation to the fifth Claimant, Mrs Lee). It is clear from those decision letters that the Defendant did have due regard to the matter referred to in that duty, including in particular, the need to eliminate discrimination, advance equality and foster good relations. He concluded that any impact on the Claimants by reason
of
their protected characteristics was justified and proportionate. There was no breach
of
the public sector equality duty.
- Mr Masters made a number
of
other submissions. Many
of
these were putting in different form points already made. Others did not, on analysis, demonstrate any flaw in the decision-making process such as would lead to the quashing
of
any
of
the decisions under challenge. It would lengthen an already long judgment to deal with each and every additional point made. I have considered all the material and all the case law upon which Mr Masters relies.
CONCLUSION
- On the evidence before this court, the Claimants have not established that the decisions to dismiss the appeals and refuse planning permission involved any differential treatment on the grounds that they are Irish Travellers or Romany Gypsies. The decisions in each case were lawful, rational decisions which were compatible with their rights under Article 8 ECHR. The applications under section 288
of
the 1990 Act to quash the decisions are therefore refused.
- The applications
for
permission to appeal under section 289 against the decisions
of
5 March 2014, in the case
of
Mrs Doran, and 18 February 2014 in the case
of
Mrs Lee, dismissing the appeal against the enforcement notice in their cases are arguable and permission to appeal against those decisions is granted. However, the appeals themselves have not established any error
of
law on the part
of
the decision-maker and are dismissed. If and in so far as Mrs Doran was seeking permission to appeal against the direction
of
16 August 2013 that her appeal be determined by the
Secretary of State
, permission to appeal against that decision is refused. Challenges to the ministerial announcement cannot be challenged by way
of
an application under section 288 or an appeal under section 289
of
the 1990 Act.
For those reasons these applications and appeals are dismissed.