Doherty, R (on the application of) v First Secretary of State & Anor

J U D G M E N T

Tuesday, 29th July 2003

1. MR JUSTICE SULLIVAN: This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the Act") against a decision of the First Secretary of State contained in a decision letter dated 4th March 2003 to dismiss the appellant's appeal against an enforcement notice issued by Hertsmere Borough Council on 20th September 2001.

2. The enforcement notice alleged that land at Summerswood Lane, Ridge in Hertfordshire was being used as a caravan site without planning permission. The site is in the Green Belt and is within a designated landscape development area on the local plan proposals map.

3. The site was purchased for the appellant's use in September 2001 by his uncle. After some preparatory works, caravans were brought on to the site, but they were not occupied when the enforcement notice was issued.

4. The appellant moved on to the site in October/November 2001 and subsequently obtained school places for the younger children in his extended family. The children are taken by taxi to schools in Borehamwood. The family also registered with a local doctor.

5. The appeal against the enforcement notice was on grounds (a) and (g) in section 174(2). The Secretary of State appointed an Inspector, initially to determine the appeal, but during the course of the seven day Inquiry, which began on 30th April 2002, but did not conclude because of adjournments for various reasons until 4th October 2002, the Secretary of State recovered jurisdiction.

6. Accordingly, the Inspector reported to the Secretary of State. Before the Inspector, the appellant made it plain that he was not seeking a permanent planning permission. He sought a temporary permission for two years to enable him and the Council to identify another site on which he could relocate within sufficient distance not to disrupt the educational needs of the children at the appeal site (paragraph 73 of the Inspector's report).

7. The Inspector recommended that the ground (a) appeal should be dismissed and that the enforcement notice should be upheld, but that the period for compliance should be extended from one day to two months.

8. The Secretary of State's decision letter

9. In paragraph 3 of the decision letter, the Secretary of State agreed with the Inspector's conclusions and accepted his recommendation for the reasons set out in the remainder of the letter. In summary, the Secretary of State concluded in paragraphs 4 to 11 that the development was contrary to Green Belt policy and detrimental to the character and appearance of an attractive rural area; that the use of the access to the site without visibility splays was hazardous to highway users, and that provision of visibility splays would have a severe impact on roadside vegetation; and that the site was not a sustainable one in terms of the national policies contained in PPG3 and PPG13.

10. Under the heading "Countervailing factors and very special circumstances, the Secretary of State said this in paragraphs 12 to 17 of his decision letter:

"12. The Secretary of State has therefore considered whether there are any countervailing material considerations which would outweigh the presumption against inappropriate development in the Green Belt, the harm to the appearance and character of the countryside and the harm arising on highway safety and sustainability grounds. In doing so the Secretary of State has taken full account of the grounds which were advanced in support of your client's appeal. In his consideration of whether there is a general need for Gypsy sites in Hertfordshire and in particular Hertsmere Borough the Secretary of State finds that no material changes have arisen since his decision of 25th April 2002 on the 'Pylon Site' that would clearly demonstrate the existence of a robust quantitative assessment of need in compliance with paragraph 12 of Circular 1/94. He therefore agrees with the Inspector that only limited weight should be accorded to Review Local Plan Policy S9 in consideration of this present appeal.

13. In his decision letter of 25th April 2002 ('the Pylon Site') the Secretary of State accepted that there was a substantial shortage of lawful Gypsy sites in Hertfordshire in general and Hertsmere Borough in particular. Furthermore the Secretary of State accepts that the Council is in the most difficult position as the entire borough outside of the built up areas, like other rural parts of South Hertfordshire, is in the Green Belt and Circular 1/94 advises that Green Belt land should not be allowed for Gypsy sites in development plans. However the Secretary of State takes the view that there remains a general need for further Gypsy accommodation notwithstanding the additional encampments at the Pylon Site, and he therefore accords this need some weight in determining your client's appeal.

14. The Secretary of State has considered the personal needs of the appellant and his family as set out in paragraphs 212 to 223 of the Inspector's report. The appellant and his family have no clearly identified connections or affinity with the locality, although since moving onto the land his children attend schools in Borehamwood and the family is registered with a local doctor. The Secretary of State agrees with the Inspector that the educational advantages gained by the appellant's children attending their existing schools are important factors. However no evidence has been submitted to suggest that the specialist health for Gypsy children as provided in their present schools would not be available elsewhere in the county nor is there any evidence to indicate that places would not be available in schools elsewhere. Furthermore, the Secretary of State agrees with the Inspector that there would be no certainty that your client would not find another site within a reasonable distance of the same schools and the provision of taxis by the County Council where necessary to take children to school gives a further measure of flexibility in meeting the children's educational needs. The Secretary of State therefore shares the Inspector's view that the educational needs in this case do not add significant weight to your client's case".

15. Regarding your client and his family's health needs, there is no evidence to suggest that the present arrangements could not continue or similar alternative arrangements made with another doctor. The Secretary of State therefore accords these grounds little weight in determining your client's appeal.

16. 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. Prior to purchase of the appeal site, there is no clear evidence that your client sought out alternative sites although efforts have since been made to search for other sites. The Secretary of State recognises the high cost of urban land in this locality but the financial evidence is inconclusive as to your client's ability to afford accommodation either now or in two years' time and little reference has been made by the inquiry parties to the possibility of renting land for a temporary period to allow your client to search for permanent accommodation. 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 or his uncle 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 history 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. In addition, although your client argues that the lack of 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 shares the Inspector's view in paragraph 218 of his report that the weight attributed to your client's case on these grounds would be seriously undermined by his limited search for accommodation. He agrees with the Inspector that a search might identify other sites that might meet your client's need and in the Secretary of State's view it has not been demonstrated sufficiently that the likelihood of finding other suitable sites for accommodation would be remote, as no systematic search over a widespread area, including land outside the Green Belt, has been carried out.

17. The Secretary of State has therefore balanced the need for your client and his family to have a settled residential base so that their educational and health care requirements can be met against the continuing harm the appeal scheme causes to the Green Belt, the risk to highway safety arising from the use of the access, the harm to the visible amenity of the surrounding countryside and the conflict with national and local policies to direct development to more sustainable locations. He concludes, in agreement with the Inspector, that the disadvantages arising from use of the site, which are well founded and substantial, are not outweighed by the collective weight of the need for further Gypsy accommodation and the personal needs of your client and his family. Furthermore the weight attributable to the difficulties of finding alternative accommodation are countered by your client's decision to move his family to the appeal site after the enforcement notice was issued and by his limited search for accommodation. Accordingly, the Secretary of State has not found that the arguments put forward on behalf of your client amount to the very special circumstances necessary to clearly outweigh the harm arising by reason of inappropriateness together with the other harm identified in paragraphs 10, 11 and 12 above".

11. On behalf of the appellant, Mr Cottle took issue with the two sentences, which I have underlined for ease of identification, in paragraphs 14 and 16 of the decision letter. Although a number of grounds of appeal had been advanced in the application for permission to appeal under section 289, Collins J granted permission on two grounds only.

12. Firstly, that the Secretary of State failed to give proper weight in consideration of the appeal to the findings that there was a substantial shortage of lawful gypsy sites in Hertfordshire in general and Hertsmere in particular, such that the Council was not aware of any suitable site.

13. Secondly, that the Secretary of State determined that the issue of the educational needs of the appellant's children did not add significant weight to the case, as there was no evidence to suggest that specialist help for gypsy children provided in their present schools would not be available elsewhere in the county and would be accessible without considering that, firstly, in the absence of the appeal site and, secondly, the evidence of shortage of gypsy sites already referred to, there was no evidence, the burden of proof as to which was on the Council, where the site was from which such help was capable of being accessed.

14. Dealing shortly with the first of those grounds, it is plain from paragraphs 12 and 13 of the decision letter above that the Secretary of State did have regard to the general need for further gypsy accommodation in Hertfordshire and in Hertsmere Borough in particular. He gave that factor "some weight" in determining the appeal.

15. The appellant's submissions focussed upon ground 3, which is concerned with the manner in which the Secretary of State dealt with the educational needs of the children of the extended family.

16. The appellant's submissions

17. Mr Cottle submitted that the Secretary of State had concluded that the children's educational needs did not add significant weight to the appellant's case because he had concluded that the appellant might find an alternative site within reasonable distance of the same schools, when there was no evidence on which he could have reached the latter conclusion.

18. The evidence pointed the other way. There was no realistic prospect of the appellant being able to find an alternative site. He referred to the Secretary of State's agreement with the Inspector's conclusion in the Pylon Site appeal that there was no prospect of the appellant in that case acquiring or being offered to rent an alternative site in Hertfordshire for himself and his wider family; to the fact that the entire borough of Hertsmere outside the urban areas was in Green Belt; to the evidence provided by the appellant as to his financial means; to the number of unauthorised encampments in Hertfordshire and in Hertsmere; to the waiting list for accommodation on gypsy caravan sites in the county; to the appellant's search for alternative sites; and to the fact that the Council was not aware of any suitable site.

19. Against this background, he submitted that the Secretary of State's conclusion that the appellant might find another site was too speculative. In saying that there was "no certainty" that the appellant would not find another site within a reasonable distance of the same school, the Secretary of State was in effect concluding that there was a possibility that the appellant might find such a site, when there was no evidence to support the existence of such a possibility.

20. He submitted that there was a "tension" between the Borough Council's statement that it was not aware of any suitable alternative site and the Secretary of State's conclusions (underlined) in paragraphs 14 and 16 of the decision letter.

21. Conclusions

22. The proposition that the Secretary of State was not entitled to conclude in paragraph 16 that an alternative site might be found if a sufficiently systemic search over a widespread area, including land outside the Green Belt was carried out, would appear to be directly contrary to the case which was being advanced on behalf of the appellant before the Inspector, which was not that planning permission ought to be granted on a permanent basis, but that a temporary planning permission should be granted for two years to enable him and the Council to identify an alternative site. If there really was no possibility of an alternative site being found, it would not have been appropriate to seek a temporary planning permission for two years.

23. Be that as it may, I am not persuaded that there is any "tension" between the Secretary of State's conclusions and the Borough Council's inability to identify a suitable alternative site. The decision letter has to be read as a whole. The Secretary of State was well aware of the substantial shortage of lawful gypsy sites in Hertfordshire in general and in Hertsmere in particular. That general need remained notwithstanding his grant of planning permission for additional encampments at the Pylon Site (see paragraphs 12 and 13 of the decision letter).

24. It is against this background of general need that the Secretary of State went on to consider the particular needs of the appellant. He agreed with the Inspector that the appellant and his extended family had "no clearly identified connections or affinity with the locality".

25. This echoes the Inspector's conclusion in paragraph 215 that Hertsmere Borough had been "only one of many locations over a period of years in which the appellant has found stopping places for varying periods of time".

26. The Secretary of State noted that since the family had arrived on the site in October/November 2001, the children had attended schools in Borehamwood. He dealt with that issue in paragraph 14 and with the family's health needs in paragraph 15.

27. Against this background, it is plain that the Secretary of State was in effect saying to the appellant in paragraph 16 of the decision letter: "since you have no clearly identified connections or affinity with the locality (where there is a particular shortage of gypsy accommodation) you are able to cast your net wider and carry out a systematic search over a more widespread area, including land outside the Green Belt".

28. Reading the decision letter as a whole, it is plain that that "widespread area" was not confined to Hertsmere Borough, or indeed to Hertfordshire. Subject to the point made in relation to the effect upon the children's education, that was an approach that the Secretary of State was fully entitled to adopt, given his conclusion as to the extent of the appellant's local ties.

29. Returning to the manner in which the Secretary of State dealt with the children's educational needs, he firstly agreed with the Inspector that the educational advantages gained by the appellant's children attending their schools were important factors. He then went on to note that no evidence had been submitted to suggest that the specialist help for gypsy children, as provided in their present schools, would not be available elsewhere in the county, and that there was no evidence to indicate that places would not be available in schools elsewhere.

30. Those conclusions were based squarely upon the Inspector's conclusions in paragraphs 220 to 222 of his report, which were as follows:

"The educational advantages gained by the five children that attend schools in Borehamwood are important factors. There is a danger that removal of the children from their existing schools might cause them upset and apprehension and more so than for children from more settled background. In appeals in Basildon District, similar considerations provided compelling reasons, set against strong environmental objections, leading to a permission in that case; conversely, in the Doncaster case, such considerations did not carry such strength.

221. The appellant did not move to the appeal site because the children were already accommodated at schools in Borehamwood. The specialist assistance given to schools to cater for the needs of Gypsy children is not confined to these schools, but would be available throughout the county providing places were available to accommodate the children. There is no reason to believe that such specialist assistance would not be available elsewhere in the county or even that similar assistance might be available from other local educational authorities beyond. Nor is there evidence that would suggest place would not be available in schools elsewhere.

222. There would be no certainty that the appellant would not find another site within reasonable distance of the same schools. There is no fixed catchment area as such and the County Council arranges taxis where no suitable public transport exists. I believe this would provide the appellant with a further measure of flexibility. I do not believe the educational needs in this case would add significant weight to the appellant's case".

31. In reaching these conclusions, it is plain that the Inspector in effect accepted the Council's case on educational need.

32. Thus, this was not a case where special educational facilities required by a particular child were available at a particular school and were unlikely to be available elsewhere. The appellant chose the appeal site not because of the qualities of the schools in Borehamwood, to which the children had to be taken by taxi, but simply because it was purchased for him by his uncle.

33. There was evidence before the Inspector, which he was entitled to accept, that the specialist assistance given to schools to cater for the needs of gypsy children was not confined to the schools in Borehamwood, that it would be made available elsewhere in Hertfordshire, and was indeed available outside the county.

34. So far as disturbance to the children if they had to move school is concerned, the Inspector concluded that there was a danger that removal from their existing schools might cause them upset and apprehension "and more so than for children from more settled backgrounds".

35. Against the background of this evidence, the Secretary of State was entitled to conclude that the educational needs of the children did not add significant weight to the appellant's case whether or not he was entitled to conclude that there was "no certainty that your client would not find another site within a reasonable distance of the same school".

36. The very tentative nature of that finding is plain. The Secretary of State's decision was, however, not based upon the proposition that the appellant probably would find an alternative site within a reasonable distance, or even that he possibly would find such a site. It was based upon the proposition that the facilities, which had been provided for a relatively short time in the schools at Borehamwood, would be available elsewhere.

37. He merely went on to note, as he was perfectly entitled to do, that it was not certain that the appellant would not find another site within a reasonable distance of the same schools.

38. He was entitled to conclude that there was no certainty about that matter, despite the fact that the Council was not able to identify a site (a) because the availability of taxis meant that a reasonable distance could in fact be quite some distance away and not necessarily confined to the borough; and (b) because the appellant's own search had been very limited.

39. It has to be remembered that the Secretary of State was not positively advancing either a probability or a possibility. He was merely observing that there was no certainty that a site within reasonable distance of the same schools might be found.

40. Reading the paragraph as a whole, that conclusion has to be considered in the context of the provision of taxis by the County Council, giving a further measure of flexibility. So the site need not necessarily have been within Hertsmere.

41. The possibility of finding such a site might well have been low, but that does not mean that the Secretary of State was not entitled to observe that there was no certainty about the matter.

42. Such a tentative conclusion might have been inadequate (although whether the omission would have justified quashing the decision is another matter) if there had been evidence that the special facilities at the schools in Borehamwood were not available elsewhere and/or there had been evidence from for example an educational psychologist, which had been accepted by the Secretary of State, that moving the children from their existing schools would be more than merely upsetting, but particularly disturbing to their educational development.

43. Against the background of the Inspector's conclusions as to the availability of specialist facilities elsewhere, and the impact that any move from their existing schools would have on the children, the Secretary of State was entitled to conclude that their educational needs did not add significant weight to the appeal. His acceptance of the Inspector's view that in addition it was not certain that the appellant would not find another site within a reasonable distance of the same schools was not central to his conclusion on this point, and was in any event one which he was entitled to reach upon the evidence whole.

44. Standing back and looking at the decision letter as a whole, it is plain that the Secretary of State carried out a very careful balancing exercise. He balanced the personal needs of the appellant and his family, and in particular their educational and health care requirements, against the very serious planning objections that he had found. He concluded that the former did not amount to very special circumstances so as to outweigh the latter. As a matter of planning judgment, he was entitled so to conclude, and it follows that this appeal must be dismissed.

45. MR MOULD: my Lord, I apply for an order that the appeal be dismissed with the first defendant's costs. I understand that the claimant is legally aided and therefore I accept that that order will be subject to the usual terms as to enforcement.

46. MR JUSTICE SULLIVAN: Yes. Can you resist that, Mr Cottle?

47. MR COTTLE: Not subject to the normal terms, no.

48. MR JUSTICE SULLIVAN: No.

49. MR COTTLE: My Lord, I do rise, if I may, to seek -- I think, as a second appeal, it is probably subject to the Court of Appeal's leave.

50. MR JUSTICE SULLIVAN: I cannot give you permission, I am afraid.

51. MR COTTLE: Indeed. It is subject to the Court of Appeal.

52. MR JUSTICE SULLIVAN: So the appeal is dismissed. The claimant is to pay the costs of the first respondent, but those costs to be subject to what I call the normal legal aid order, or whatever it is now.

53. MR COTTLE: Determination of liabilities subject to section 11 of the Access to Justice Act 1989.

54. MR JUSTICE SULLIVAN: The Associate will tell you what it is, but that is what I am going to do.