The First Secretary of State & Anor v Simmons

This is an appeal against the judgment of Mr Justice Newman dated 2 March 2005 whereby he quashed a decision of the First Secretary of State (“the Secretary of State”) dated 2 July 2004 and remitted it for re-consideration in the light of the judgment. The Secretary of State had upheld an enforcement notice, as varied, issued on 27 June 2003 by Sevenoaks District Council (“the Council). It related to the making of a material change of use of land at Station Court, east of Knockbolt Station, Sevenoaks Road, Halstead, Kent, to use for the purposes of a private caravan site. The site is about 0.3 hectares in extent.

Mr R Simmons (“the respondent”) had appealed against the enforcement notice upon grounds which included that in Section 174(2)(a) of the Town and Country Planning Act 1990, as amended (“the 1990 Act”), which provided that, in respect of any breach of planning control, planning permission ought to be granted. By direction dated 28 August 2003, the appeal was recovered for determination by the Secretary of State because it related to proposals for significant development in the Green Belt. The Secretary of State appointed an inspector to conduct a local public enquiry and, in his report to the Secretary of State, the inspector recommended that the appeal be allowed, the enforcement notice quashed and planning permission granted. Having considered his inspector’s report, the Secretary of State decided to uphold the enforcement notice, as varied, and refused to grant planning permission on the application deemed to have been made under Section 177(5) of the 1990 Act.

The site is within the Metropolitan Green Belt and within a Special Landscape Area. The respondent and his family are Irish travellers, and gypsies within the meaning of Section 24(8) of the Caravan Sites and Control of Development Act 1960, as amended. The land was being used as a private gypsy caravan site. The council considered the use inappropriate in the Green Belt and issued and attempted to enforce the enforcement notice.

Paragraph 3.1 of Planning Policy Guidance 2 (1995), entitled Green Belts, provides that there is a general presumption against inappropriate development within a Green Belt. Paragraph 3.2 provides:

“Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”

The site forms part of a Special Landscape Area. Policy EN7 of the Council’s local plan, adopted in 2000, provides that development will be permitted only where it would cause no significant harm to the landscape character. The Secretary of State concluded, and this is not challenged, that unless very special circumstances exist, the development would fail to accord not only with national planning guidance in PPG2 but with Structure Plan Policy MGB 3 and Local Plan Policy GB2 designed to protect the openness of the Green Belt.

Paragraph 12 of Circular 1/94, entitled Gypsy Sites and Planning, provides that local plans should wherever possible identify locations suitable for gypsy sites, whether local authority or private sites, and should make a quantitative assessment of the amount of accommodation required. Paragraph 13 provides that “gypsy sites are not regarded as being among those uses of land which are normally appropriate in Green Belts. Green Belt land should, therefore, not be allocated for gypsy sites in development plans”. This creates a difficulty, as the Secretary of State recognised, “as the entire District outside of the built up areas is in the Green Belt”.

In Kent as a whole, with its many district council areas, 17 gypsy sites are provided by local authorities, with a total of 218 pitches. Of the local authority sites, three, with 54 pitches in all, are in Sevenoaks. In addition the District has 25 gypsy families living on private sites with the benefit of planning permission. (Paragraph 18 of inspector’s report). The Secretary of State agreed (paragraph 14) with the inspector’s finding that in the absence of any quantitative assessment of need, carried out in compliance with paragraph 12 of Circular 1/94, it is not possible to know to what extent needs are being met by the existing site provision of 25 private sites and 54 public pitches.

The issue identified by the Secretary of State was “whether in the light of what is acknowledged to be inappropriate development in the Green Belt, there are any other material considerations which would outweigh that harm and any other harm identified, thereby amounting to very special circumstances justifying a grant of planning permission.”

Having set out the relevant development policies, the Secretary of State stated that he placed “greater weight in the determination of this appeal on the harm by inappropriateness and the harm to the character of the wider area than the inspector has identified”. Under the heading “Very Special Circumstances”, the Secretary of State accepted (paragraph 14) that there was “an unmet need for sites in the district and county, which adds some weight to [the appellant’s] case, but the shortage is not, in his view, alone sufficient to amount to very special circumstances in its own right”.

The Secretary of State stated (paragraph 17) that he placed greater weight than the inspector “on the finding that the development on the site is clearly visible from the hillside to the north and results in a change in character of the area from open rural to more suburban appearance and that there is a resulting loss of openness”. It is accepted on behalf of the respondent that the Secretary of State, as the decision maker, was entitled to come to that conclusion.

At paragraph 15, the Secretary of State considered the personal needs of the appellant and his family and, later in his decision letter, made a reference to Article 8 of the European Convention on Human Rights. He referred to the family’s connections with the locality. They had travelled and camped in the general area for several years. The Secretary of State referred to the attendance of the respondent’s nine year old son at Halstead Primary School where he was receiving special support for his literacy needs and benefited from a good teacher/student ratio. However, the Secretary of State shared the inspector’s view that “the educational needs in this case are not so far out of the ordinary as to amount to very special circumstances in their own right”.

The most controversial paragraph in the decision letter is paragraph 16. It follows the above consideration of the respondent’s personal needs and provides:

“The Secretary of State has carefully considered the weight to be given to the difficulties of finding alternative accommodation for your client and his family. He notes that there were no vacancies on any of the local authority gypsy sites in the District and that waiting lists existed for each site. No land is allocated for caravan sites in the development plan in the district and the Secretary of State agrees with the inspector’s conclusion that there was little likelihood of any sites becoming available in the short term. There is evidence of your client having made enquiries at the nearby Polhill site prior to moving to the appeal site, but there is no clear evidence of any other efforts your client may have made to find alternative sites. Paragraph 20 of Circular 1/94 encourages gypsies to consult local planning authorities prior to purchasing land for encampments and in this case there is no evidence that your client sought to discuss the merits of the appeal site or any other with the council before purchase. If this consultation had been carried out, the planning status of the site would have been made known to your client and would have provided a good indication of the suitability or otherwise of the appeal site in meeting his needs. Therefore, although your client argues that the lack of a proper quantitative assessment of need means that there would be little likelihood that guidance would be available from the development plan, the Secretary of State concludes that the lack of evidence of a search for other sites weighs against your client’s case.”

At paragraph 17, the Secretary of State stated that he balanced the needs of the family and the acknowledged need for more gypsy caravan sites in the area with his own landscape assessment already summarised. Having also considered, and rejected, the possibility of meeting the objections to the development by the imposition of planning conditions, the Secretary of State concluded at paragraph 19:

“The arguments put forward on behalf of [the respondent] do not, in the particular circumstances of this case, amount to the very special circumstances sufficient to clearly outweigh the harm to the Green Belt by reason of inappropriateness and the other harm identified so as to justify the grant of planning permission sought”.

He repeated, at paragraph 20, that “there are no very special circumstances sufficient to justify the grant of planning permission”.

The decision of the judge was based mainly on a consideration of paragraph 16 of the decision letter. He referred to the difficulty faced by a gypsy seeking a site in Sevenoaks district and noted the inspector’s comment that any land in a built up area, even if a suitable site could be identified, would be beyond the means of gypsies. The inspector had concluded that there were no alternative sites available and the Secretary of State referred to the acknowledged need for more gypsy caravan sites in the area.

The judge referred to the Secretary of State’s conclusion, in paragraph 16, that the lack of evidence of a search for other sites weighed against the respondent’s case. The judge saw force in the submission, and I respectfully agree, that “it is difficult to see what could possibly have been achieved had the claimant spent weeks attempting to find a site in the Sevenoaks district”. The judge added, at paragraph 28, that “without a conclusion by the Secretary of State as to what such a search or efforts would have achieved, assuming a failure on the part of the [respondent], the conclusion is without consequence”. The judge added, at paragraph 34, that the Secretary of State had not indicated how he weighed against the claimant the supposed lack of cogent evidence of searches for other sites. The judge fairly commented that it did not appear in terms in paragraph 17 of the decision letter, where the word ‘balance’ appears.

The judge’s conclusion was at paragraph 35:

“In my judgment, if, on a true reading of the Secretary of State’s conclusion, he is to be taken as having rejected the finding of the lack of available sites simply because of a lack of clear evidence of searches by the [respondent], he plainly failed to take account of all the evidence”.

In seeking to uphold the decision of the judge, Mr Masters underlines the evidence of lack of accommodation for gypsies in Sevenoaks District and, more widely, in Kent. He also challenges the Secretary of State’s finding in paragraph 16 that “there is no clear evidence of any other efforts your client may have made to find alternative sites”.

For the Secretary of State, Mr Sales makes the general point that it is for the potential developer to establish very special circumstances if permission for inappropriate development in the Green Belt is to be obtained. The extent of the applicant’s efforts to obtain a site in less unsuitable locations in planning terms is a material consideration, it is submitted, because circumstances can more readily be held to be very special if no other location is possible. In this context, the absence of a quantitative assessment of need by the local authority does not lessen the burden on the applicant.

Mr Sales also submits that the Secretary of State was entitled to make his finding of fact in relation to efforts made by the respondent to find alternative sites. He cites, as did the judge, paragraphs 57 and 69 of the inspector’s report where the submissions of the District Council and the Parish Council respectively are summarised. Paragraph 57 provides:

“The appellant and his family are travellers and their intention to continue to pursue a travelling lifestyle is acknowledged. They have a connection with Sevenoaks, having pitched caravans in the area on many occasions, but they also have similar connections with numerous other areas. They have not put their names on any local authority waiting list for sites, or looked for land in other parts of the County where land-use policies are less restrictive. They made no serious enquiries about any other sites before purchasing the appeal site.”

Paragraph 69 provides:

“The extent of any general need for additional provision and the apparent absence of available pitches on authorised sites are however immaterial in this case, because the appellant has never shown interest in becoming a tenant on a public site and has never added his name to the waiting list. He and his family have occupied unauthorised sites in Bromley, several different towns in Kent, and in Essex; they have no legitimate, long-term connections with Sevenoaks and there is no obligation on the District Council to find accommodation for them. Whilst it is true that any site in Sevenoaks would probably have to be in the Green Belt, that is not the case in other parts of Kent, where land is not only free of Green Belt constraints but also far less expensive than in Sevenoaks.”

While not accepting some of the arguments advanced by the Parish Council, the inspector did not reject the facts stated, which entitled the Secretary of State to make the comment he did.

The inspector referred to the cost of land. Land in the Green Belt cannot readily be used as development land, for almost any kind of development, and that will of course normally depress the price of Green Belt land on the market. The fact that it is cheaper than development land will rarely contribute to the establishment of very special circumstances, however. Of course, that relative cheapness increases its attractiveness to a purchaser or potential purchaser if he manages to obtain development rights.

The wording of the second part of paragraph 16 of the decision letter is both curious and unsatisfactory, as the judge found. It is difficult to see how consultation with the local authority would have helped the respondent in this case, who was probably well aware of the Council’s stance. Moreover, the “therefore” which begins the last sentence of the paragraph does not follow from what has gone immediately before and the second part of that sentence does not readily follow from the first. The comment that the lack of evidence of a search, a finding which I accept the Secretary of State was entitled to make on the evidence, weighed against the respondent’s case could have been better put, as counsel for the appellant at this hearing has put it. He put it on the basis that an applicant for permission in this context, who has not done all he might have done to seek a site which is less unattractive in planning terms, may have more difficulty in discharging the burden of showing very special circumstances justifying the grant of permission on this site.

Notwithstanding that criticism, the decision letter, on a full reading, should in my judgment be upheld. The balance mentioned in paragraph 17 can fairly be treated as a balance involving all the factors set out in paragraphs 13 to 17. The Secretary of State was entitled to conclude, on a consideration of those factors, that “very special circumstances”, which would justify inappropriate development in the Green Belt, had not been established. The difficulty of obtaining land for caravan sites was well in mind, as was the evidence of need as a material consideration. I do not agree with the judge that the Secretary of State failed to take account of all the evidence.

The somewhat confused wording in the second part of paragraph 16 does not, in my judgment, on a reading of the letter as a whole, undermine the decision or the sufficiency of the reasoning. The Secretary of State was entitled to make the findings he did. The material considerations were sufficiently set out and the planning judgment made by the Secretary of State was justified.

For those reasons, I would allow this appeal.

I agree that the appeal should be allowed for the reasons given by Pill LJ. I add a few words of my own, particularly with reference to some of the cases which were cited to us.

Apart from paragraph 16, this would have been a wholly conventional and unsurprising decision. In paragraph 14 the Secretary of State accepted that there was an unmet need for gypsy sites which was not adequately addressed by the local Plan, but did not regard the shortage as sufficient in itself to amount to “very special circumstances” justifying inappropriate development in the Green Belt. In paragraph 15 he considered and rejected the case for special treatment, based on the educational circumstances of Mr Simmons’ children. In paragraph 17 he considered the visual impact, and concluded that there would be a change to the character of the area from “open rural to a more suburban appearance” with resulting loss of openness. In paragraph 18 he held that conditions would not overcome these problems. None of these conclusions is open to challenge on legal grounds. Taken together they meant that the planning appeal was doomed to failure.

Although, like Pill LJ, I find paragraph 16 difficult to follow, I think that Newman J attached too much importance to this point. At paragraph 31 he said this:

“In my judgment where a gypsy seeks to obtain permission to develop a site in the Green Belt, the decision as to whether there are very special circumstances for permitting the development in the Green Belt will require consideration to be given to the evidence of the availability of an alternative site in the relevant planning district in which the application has been made. Obviously evidence pointing to the availability of a site outside the Green Belt, but within the planning district, could amount to a weighty factor against the grant of permission.”

That is clearly too narrow an approach, insofar as it appears to confine attention to the particular planning district. Indeed the Judge went on (para 33) to accept “that availability outside the Green Belt and outside the district in which the application is made” may also be relevant.

In any event, the availability of alternative sites in a particular area is only logically relevant, once it is established that there are special circumstances which require a site in that area, and that those circumstances are in themselves sufficiently compelling to overcome Green Belt policy. Mr Simmons failed at the first hurdle, since he failed to establish a special requirement to be located in the Sevenoaks district area. But even if he had been able to make such a case, based on a strong personal need, and that there were no viable alternative sites, it would not follow that as matter of policy the Secretary of State would be bound to regard it as a sufficient reason to justify the grant of permission.

There is nothing in the ECHR or domestic jurisprudence to compel such a conclusion. In Chapman v UK [2001] 33EHRR18 the court emphasised that Article 8 does not confer or give a right to be provided with a home, either at all, or in any particular location. It also recognised that it is for national authorities to determine, as a matter of political judgment, the weight to be given to restrictive planning policies, such as in the Green Belt, Although the court referred in that case to the apparent availability of other sites outside the Green Belt area, I do not read them as saying that an absence of alternative sites, by itself, would have compelled the opposite conclusion.

In the domestic context, an unusual example of a purely personal need being held to override Green Belt policy was South Bucks District Council v Porter(Number 2) [2004] UKHL 33; [2004] IWLR 153. In that case the planning inspector held that, notwithstanding a long history of attempted enforcement action against Mrs Porter, she should be granted a personal permission to enable her to remain on the site. The House of Lords reversed this court's decision that the conclusion was insufficiently reasoned. Lord Brown giving the leading speech emphasised the very narrow basis of the decision. He said:

“… to my mind the inspector’s reasoning was both clear and ample. Here was a woman of 62 in serious ill health with a rooted fear of being put into permanent housing, with no alternative site to go to, whose displacement will imperil her continuing medical treatment and probably worsen her condition. Should she be dispossessed from the site onto the road side or should she be granted a limited personal planning permission? The inspector thought the latter, taking the view that Mrs Porter’s “very special circumstances” “clearly outweighed” the environmental harm involved. Not everyone would have reached the same decision but there is no mystery as to what moved the inspector.” (para 41)

As the last sentence shows, even in such a case of compelling personal need, it would have been open to the inspector to reach a different conclusion. Certainly, it provides no precedent requiring the Secretary of State to adopt a similar approach in a case which he has called in for his own decision, specifically because of its policy implications.

In Chichester District Council v First Secretary of State [2004] EWCA 1248; [2005] IWLR 279, it was held by the majority of this court that, in deciding to grant permission for a gypsy site in a rural area, the inspector had been entitled to take into the fact that the planning authority had not made adequate provision for gypsies in accordance with national policy. The court regarded it as critical that, by contrast with Chapman’s case, the land under consideration was not in the Green Belt, nor subject to any special landscape designation (see para 81 per Ward LJ). Again, it provides no support for a case that lack of alternative sites, even if contributed to by the authority, is in itself a ground for overriding Green Belt policy.

In conclusion, while I have some sympathy for the Judge’s criticisms of the Secretary of State’s reasoning in paragraph 16, I think he was wrong to treat this as potentially undermining the remainder of the Secretary of State’s decision. Indeed, given the Secretary of State’s rejection of the case of special local need, and his conclusion on the degree of the environment harm, I would have regarded any other decision as perverse.

I agree with both judgments.