Wychavon District Council v Secretary of State for Communities & Local Government & Ors

This is an appeal against the judgment of Mitting J, quashing a decision of a planning inspector, Mr G M Hollington. He had granted temporary planning permission (for five years) for the continued stationing of a mobile home and a touring caravan on a site in the Green Belt at Upton Warren, Worcestershire. The judge held that the decision was flawed by a misinterpretation of the relevant Green Belt policy and perversity. The Secretary of State herself had not resisted the application to quash the decision. Although she is not a party to the appeal, she has submitted a written statement in which she takes issue with only a small part of the judge’s reasoning.

The present appeal is brought by Mr and Mrs Butler, the applicants. They acquired the site in late 2005, and stationed a caravan there. They have been living there ever since. One can glean various facts about their circumstances from the decision. They have two young children, Megan and Leonard. At the time of the Inspector’s decision, Megan was on the Special Needs Register and attended a primary school about 17km away from the site, though she had a place at a more local school. Leonard was not yet at nursery school, though was to be expected to be doing so as he was turning three in October 2007. Leonard suffered from asthma, which his doctor attributed to his living circumstances, and had had to be admitted to hospital on at least two occasions. Mrs Butler had recently been prescribed antidepressants because of the worry of the appeal. Mr Butler then worked as a landscape gardener. Since moving to the site he had developed a business of breeding, dealing and breaking horses.

In December 2005 they made their application for permission to station a mobile home and caravan. It appears from the decision-letter that planning permission had previously been granted for a change from agricultural to equestrian use, but it is unclear whether this covered the business as it was developed by Mr Butler. There had been some previous enforcement action relating to uses on the site, but again the details of this are not clear from the decision. It is not in dispute that the present residential use of the site is in breach of planning control, and that it is “inappropriate development” in the context of Green Belt policy.

There were relevant policies relating first to development in the Green Belt and secondly to gypsy sites. The former was contained in Planning Policy Guidance Note 2 (“PPG2”), issued in January 1995 and amended in March 2001. The key paragraphs are 3.1 and 3.2 which set out the general presumption against “inappropriate development” in the Green Belt, and the principle that such development should not be approved except in “very special circumstances”. Paragraph 3.2 continues:

Guidance in relation to gypsy sites was formerly given by Circular 1/94. That made clear that in general provision for gypsy sites should not be made in areas of open land where development is “severely restricted” such as the Green Belt. That guidance was replaced in 2006 by Circular 01/2006. The background of the new policy was explained in the introduction:

Paragraph 12 set out the main intentions of the Circular including:

The Circular contained detailed proposals for “structured assessments” to be made on a regional basis of the general accommodation needs of gypsies and travellers, and the number of pitches required to meet them; and for local planning authorities to identify suitable sites for allocation in their development frameworks. Where there was evidence of a “clear and immediate need”, planning authorities were advised to bring forward site allocations in advance of the regional consideration of pitch numbers.

Before us, there was no criticism of the Wychavon Council’s actions in pursuance of the new policy as set out in the Circular. The inspector noted, when deciding to grant a five-year permission, that the Council anticipated that the joint Core Strategy would be adopted in three years, but he added a further two years “to allow for slippage” (para 44).

For present purposes, the material parts of the Circular come in the advice given in relation to development control, specifically in respect of use of temporary permissions, and of applications in rural areas and the Green Belt. The former was referred to in paragraphs 45 and 46:

Advice in relation to proposals in rural areas was contained in paragraphs 47 to 55. (I shall need to return to aspects of this advice in connection with one of the issues in the appeal.) Specific reference was made to Green Belts in paragraph 49:

The judge commented fairly that the guidance given in the various policy documents “pulls in opposite directions”, but added:

This is a fair comment as far as it goes. However, it can with respect be criticised as giving insufficient weight to the change of emphasis in the 2006 Circular, signalled by its introduction. It is noteworthy that paragraph 49 does not entirely preclude the possibility of permission being granted for sites within the Green Belt, at least as a last resort. Although alternatives should first be explored, and it should “usually” be possible to allocate sufficient sites elsewhere, the implication is that if this does not prove possible a Green Belt site may have to be accepted. Further, although the Green Belt paragraphs contain no specific cross-reference to the paragraph on temporary permissions, there is nothing to suggest that this part of the advice is inapplicable to Green Belt applications. These parts of the advice must also be seen in the context of the general intention to avoid gypsies becoming homeless through eviction from unauthorised sites where no alternatives are available.

As the judge noted, the Inspector found against the proposal that it would represent a material encroachment on the Green Belt; that there would be some loss of openness and so some harm to the purpose of the Green Belt policy; and that it would harm the surrounding area's rural character and mostly unspoiled appearance. On the other hand, he found that there was a significant general unmet need for additional gypsy sites in the adjacent area, and a clear lack of alternative sites available to this family.

To set the decision in context, I should set out the inspector’s reasoning on the “other considerations” in full:

I have come to the views that, while not resulting in unacceptable patterns of travel, the proposed development would be inappropriate and cause unacceptable harm to the Green Belt and the surrounding area’s character and appearance. The Green Belt harm, in particular, is a matter to which substantial weight should be given.

Of the other considerations put forward by the appellants, I consider that the cost of unauthorised encampments, the ability in general to address concerns by conditions and the treatment of Circular 01/2006 are matters which are neither exceptional nor out of the ordinary. The conflict of Policy COM6 with national guidance is a neutral factor.

The need for more gypsy sites and employment needs are matters to which some weight should be attached, but the former is not unusual and the latter can carry little weight in view of the enforcement breach. Worthy of greater weight are the education and health needs, for which a settled base would be beneficial, although these are not exceptionally serious and they do not point only to a site in the Green Belt. On the other hand, and despite the occupation of the site after enforcement action had been initiated, significant weight needs to be attached to the lack of alternative sites – no place has been identified for the appellants to move to now or in the near future.

The appellants have not claimed these other considerations individually outweigh the harm to the Green Belt and it is my view that even in combination, when balanced against the substantial Green Belt and other harm I have identified, the considerations do not clearly outweigh the harm. They do not, therefore, amount to the very special circumstance necessary to justify inappropriate development and a permanent permission would not be appropriate.

Dismissal of the appeal would interfere with the family’s rights to respect for their private and family life and their home (Article 8 of the European Convention on Human Rights). The appellants acknowledge that moving on the land in breach of an enforcement notice weakens their rights and I consider the interference with these rights would be justified when weighed against the wider public interest of avoiding harm to the Green Belt and the area’s character and appearance.

However, bearing in mind the approach offered by Circular 01/2006…, there is a particular, time-limited factor: the forthcoming assessment of the need for gypsy sites, regionally and locally, and the Council’s intention to address the matter in a joint Core Strategy, when it expects to allocate sites. A temporary permission would enable the GTAA to be completed and allow additional sites to be made available, while giving the appellants somewhere to live and continue to seek an acceptable alternative. Bearing in mind also the undisputed need for gypsy sites generally and, particularly, the lack of any current alternative site, I consider that these matters, when taken together, clearly outweigh the Green Belt and other harm.

My overall conclusion, therefore, is that these concerns combine to become sufficient to constitute the very special circumstances necessary to justify a temporary planning permission. Nevertheless, as Circular 01/2006 points out, such permission should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. I appreciate the restriction would itself interfere with the family’s human rights but, weighed against the legitimate aims of protecting the Green Belt and the area’s character and appearance, I consider temporary permission would not have a disproportionate effect on the appellants.”

Before the judge, Mr Green for the authority criticised that reasoning because it failed to apply what he said was the correct “twofold test”. This he took from the judgment of Sullivan J in R (Chelmsford Borough Council) v First Secretary of State [2003] EWHC Admin 2978, [2004] 2 P & CR 677 at para 58, where he said:

He noted that in a later judgment, R (Basildon District Council) v First Secretary of State and Temple [2004] EWHC (Admin) 2759 para 17, Sullivan J had said that:

Mitting J concluded that on a fair reading of the inspector’s decision in the present case (including in particular his use twice of the word "therefore" in paragraphs 40 and 43), he had adopted the wrong approach:

However, he expressed reluctance to quash the decision if the result was capable of being sustained on the correct basis. He continued:

Although the issues have been formulated in different ways in grounds of appeal and the skeleton arguments, they can be reduced in my view to three points:

Was Mitting J correct to hold that the inspector misinterpreted paragraph 3.2 of the Green Belt Guidance?

If not, was the inspector’s reasoning in any event perverse or otherwise open to challenge in law?

(Under a respondent’s notice) In assessing the applicants’ prospects of finding an alternative site, did the Inspector leave out of account a material consideration, namely the more flexible planning policy now applicable in rural areas beyond the Green Belt?

The Secretary of State was not represented either before Mitting J or on the appeal to this court. Her present position is stated in a letter to this court from the Treasury Solicitor dated 30^th May 2008. The letter supports Mitting J’s actual decision, on the basis of the reasoning in paragraph 20-21 and 23 of the judgment (see above). However, she takes issue with the later part of the judgment (para 25) in which the judge expressed the view that the aggregation of “three commonplace factors” as in this case could not in law amount to “very special circumstances”. The letter suggests that this aspect of the reasoning is wrong in law, because it is –

I say at once that in my view the judge was wrong, with respect, to treat the words “very special” in the paragraph 3.2 of the guidance as simply the converse of “commonplace”. Rarity may of course contribute to the “special” quality of a particular factor, but it is not essential, as a matter of ordinary language or policy. The word “special” in the guidance connotes not a quantitative test, but a qualitative judgment as to the weight to be given to the particular factor for planning purposes. Thus, for example, respect for the home is in one sense a “commonplace”, in that it reflects an aspiration shared by most of humanity. But it is at the same time sufficiently “special” for it to be given protection as a fundamental right under the European Convention. Furthermore, Strasbourg case-law places particular emphasis on the special position of gypsies as a minority group, notwithstanding the wide margin of discretion left to member states in relation to planning policy (see Chapman v UK 33 EHRR 399; and the comments of Lord Brown in Kay v Lambeth LBC [2006] 2 AC 465 para 200). Thus, in Chapman the Strasbourg court recognised that the gypsy status did not confer “immunity from general laws intended to safeguard the assets of the community as a whole, such as the environment”, but added:

Against this background, it would be impossible in my view to hold that the loss of a gypsy family’s home, with no immediate prospect of replacement, is incapable in law of being regarded as a “very special” factor for the purpose of the guidance. That, however, is far from saying that planning authorities are bound to regard this factor as sufficient in itself to justify the grant of permission in any case. The balance is one for member states and involves issues of “complexity and sensitivity” (see Chapman v UK para 94). That is a judgment of policy not law, and it needs to be addressed at two levels: one of general principle, the other particular to the individual case.

At the general level, a judgment must be made as to whether, or in what circumstances, the societal value attached to the protection of the homes of gypsies as individuals can in principle be treated as sufficiently important to outweigh the public value represented by the protection of the Green Belt. That might have been thought to be a matter properly to be addressed by the Secretary of State by way of national guidance. It would perhaps have been more helpful if the PPG or the 2006 guidance had addressed this issue in terms. As it is, the guidance neither excludes nor restricts the consideration of any potentially relevant factors (including personal circumstances). The PPG limits itself to indicating that the balance of such factors must be such as “clearly” to outweigh Green Belt considerations. It is thus left to each inspector to make his own judgement as to how to strike that balance in a particular case.

At the particular level there has to be a judgement how if at all the balance is affected by factors in the individual case: for example, on the one hand, public or private need, or personal circumstances, such as compelling health or education requirements; on the other, particular factors increasing or diminishing the environmental impact of the proposals in the locality, or (as in this case) limiting its effect in time. This judgement must necessarily be one to be made by the planning inspector, on the basis of the evidence before him and his view of the site.

Although the matter may need to be considered at different levels, I see no reason to draw a rigid division between the two parts of the question posed by paragraph 3.2, as was done by Sullivan J in Chelmsford. Indeed to do so seems contrary to the thrust of most of the first instant decisions to which we have been referred. (I do not find it necessary or useful to review the decisions under the earlier guidance, which was in different terms.) It is sufficient to cite the most recent, McCarthy v Basildon DC and EHRC [2008] EWHC 987 (Admin), in which Collins J said:

If Sullivan J, in the passage relied on by the judge, intended to draw such a rigid division, I would respectfully disagree. I see no reason, in terms of policy or common sense, why the factors which make a case “very special” should not be the same as, or at least overlap with, those which justify holding that green belt considerations are “clearly outweighed”. To my mind, the wording of paragraph 3.2 (“… will not exist unless…”) reinforces that view. I prefer the formulation used by Sullivan J himself in a judgment the previous year on somewhat similar facts, Doncaster MBC v SSETR [2002] JPL 1509 para 70, where (also in the context of 3.2 of PPG2) he said:

I agree, however, with Mr George that the actual decision in the Chelmsford case is unremarkable. As he explains (in his skeleton):

I also agree with Mr George that the terms of Sullivan J’s judgment in Chelmsford may well have been influenced by the approach of the Court of Appeal in a similar Green Belt case: South Bucks DC v Secretary of State [2003] EWHC Civ 687; [2004] JPL 207. Pill LJ (at para 31) had noted that the only special circumstance relied on was “the hardship that (the applicant) is a very unwell gipsy without another pitch to occupy”. He commented:

At the time of the decision in Chelmsford, that was the most recent Court of Appeal authority on this topic. Subsequently, the Court of Appeal’s decision was reversed by the House of Lords: South Bucks DC v Porter (No 2) [2004] 1 WLR 1953. Lord Brown, in the leading speech, said

I note also that in a later case ((R(Dartford BC) v Secretary of State [2004] EWHC 2549), Sullivan J himself was careful not to extend the reasoning in Chelmsford. He regarded it as “plainly distinguishable” from the instant case, which depended not merely on personal circumstances but also on the finding of “an unmet need for gypsy sites in the area” (paras 41 and 42).

Finally I should comment on the Secretary of State’s acceptance, through the Treasury Solicitor’s letter, of Mitting J’s reasoning on the construction of the policy. It is not suggested that this is in any way binding on us. It is accepted that the meaning of the policy, once promulgated as the basis for local decision-making, is properly a matter for the court (see, for example, per Brooke LJ, in R v Derbyshire CC ex p Woods [1997] JPL 958, 967). In any event, I would have attached more weight to the Secretary of State’s views if the Department had itself adopted a more consistent approach. It is noteworthy that before the decision in the Chelmsford case, as is apparent from the arguments in that case (p 689), the Secretary of State was advancing an approach very similar to that proposed by Mr George in this case.

In conclusion, I disagree respectfully with Mitting J’s decision on this aspect of the case. The inspector did not err in failing to apply a two-stage test under paragraph 3.2. It follows that his decision was not liable to be quashed for that reason.

There remains the question whether, even accepting that he applied the correct test, his decision was perverse or otherwise open to legal challenge.

Factually, the present case may be seen as falling somewhere between Doncaster and South Bucks. The Butlers’ circumstances are not perhaps as “extreme and unusual” as those of Mrs Porter. (I do not take Lord Brown’s use of those words as intended as a redefinition of the test, rather a comment on the facts of the case.) On the other hand, by contrast with the Doncaster case, the personal circumstances of the Butlers and their children must be seen in the context of the real prospect of forced eviction from their home with no immediate alternative. This was an immediate threat, as the inspector noted, since the authority were already threatening prosecution (para 34).

In his concluding paragraphs, the inspector was careful to spell out in detail the relative weight he gave to the different factors; including those of “little weight” (the employment needs of Mr Butler), those worthy of “greater weight” (the education and health needs of the children), and that attracting “significant weight” (the lack of alternative sites). These considerations taken together did not amount to the “very special circumstances” needed to justify permanent permission. However, he took a different view of the case for a temporary permission, having regard to the prospect of the allocation of new sites over the next 3 to 5 years under the council’s strategy. In that context, “these matters, when taken together” clearly outweighed Green Belt considerations; and “therefore” he concluded that “these concerns combine” to constitute the very special circumstances necessary to justify grant of planning permission.

The judge fixed on the word “therefore” as indicating that the inspector had wrongly treated the two parts of paragraph 3.2 as involving the same test. To some extent I share the judge’s difficulty in determining precisely the import of the word “therefore” in the crucial paragraph 43; and consequently whether “these concerns” (para 43) are the same as “these matters, when taken together” (para 42), and in turn to what extent they encompass any of the personal considerations previously referred to. It might have been more helpful if the letter had spelt this out more clearly. However, I do not think this criticism is sufficient to undermine the validity of the decision, once the two-stage test has been rejected. Against the background of the 2006 policy, and the expectation of sites becoming available in the near future, the inspector was entitled in law to treat the prospect of immediate eviction of a gypsy family with young children, who had nowhere else to go, as sufficiently “special” in itself to support his conclusion. As Lord Brown said of South Bucks, other inspectors might have taken a less generous view. But the conclusion is not perverse.

The final point relied on by Mr Green, for the authority, although not dealt with by the judge, is the failure of the inspector to give sufficient weight to what is said to be the new flexibility signalled by the 2006 guidance in respect of sites outside the Green Belt.

The inspector did not in terms address the point. He referred to the family’s unsuccessful attempts to find other land on which to live. He accepted that the site could have been sold and used to buy land in a rural area elsewhere, but he commented:

The only evidence before us of what was said at the inquiry is in the witness statement of Mr Marshall, the Council’s Solicitor, which exhibits his notes of the evidence, apparently recording an exchange between Mr Green and the Butlers’ witness Mrs Heine. The notes are not in the court bundle, but his statement says:

In submissions, Mr Green attempted to put some flesh on that skeletal account by contrasting the relevant passages in, respectively, the 1994 and 2006 circulars:

How significant (if at all) the change is in practice can only be tested in future cases. There was certainly no evidence before the inspector or before us that the change has in fact led to the release of new sites, in the Wychavon area or anywhere else, nor to undermine the inspector’s comment (on the evidence before him) that there was “no indication that searching over a wide area would be more fruitful”. In any event, Mr Marshall’s evidence falls far short of establishing that this was a substantial part of the council’s case at the inquiry, so that the decision was legally defective in failing to deal with it.

Finally I should comment briefly on the authority’s concern, in which the judge saw some “force” (para 26) that the inspector’s decision if upheld might set an undesirable precedent for gypsies or travellers seeking temporary permissions in the Green Belt. I understand the concern, but I do not think it is for the court to provide a remedy. The legal and policy framework which I have discussed leaves significant discretion to inspectors at both general and specific levels. It is unsurprising, albeit perhaps unhelpful to local planning authorities, that the results may not always be consistent. But that is not itself indicative of illegality or irrationality.

The court’s task is to enforce the law, not to fill in gaps in national policy. Recent House of Lords decisions in relation to asylum cases and other contexts have cautioned against undue intervention by the courts in policy judgments by expert tribunals within their areas of specialist competence:

That also has consequences for the question of precedent. I would also repeat the comment I made, again in an asylum case:

The same comments may be applied mutatis mutandis to the position of local authorities in respect of inspectors’ decisions, at least until the Secretary of State decides to provide more specific national guidance (perhaps through an amended circular or a called-in decision) on the issues of principle arising in this case,

For these reasons I would allow the appeal and restore the inspector’s decision, and his grant of permission.

I agree.

I also agree.