Wychavon District Council of Civic Centre, R (on the application of) v Secretary of State for Communities & Local Government & Ors

MR JUSTICE MITTING: This is a planning appeal under section 288 of the Town and Country Planning Act 1990 by the local planning authority against a decision of Mr G M Hollington, an Inspector appointed by the Secretary of State, to grant on appeal planning permission for a change of use for one mobile home and one touring caravan for one small gypsy family at Paddock 1, Bywater Farm, Crutch Lane, Upton Warren, Worcestershire. The decision was issued on 5th February 2007 pursuant to an appeal hearing which took place on 17th January, with a site visit on 18th January 2007.

The two principal grounds of challenge are that the Inspector applied the wrong test to the fundamental question that he had to ask and that he reached a decision upon it which was perverse. There is one subsidiary ground.

The Secretary of State does not resist this appeal. She accepts that the Inspector's decision was based on an error of law so that it should be quashed. The appeal is, however, resisted by the second and third, defendants, Mr and Mrs Butler, who were the beneficiaries of the grant.

The facts can be taken from the Inspector's decision which, as regards recitation of facts and its consideration of individual questions, is meticulous. For some years Mr and Mrs Butler have pitched their caravan at the appeal site in a rural area of Worcestershire. The area is included within the Green Belt. Mr and Mrs Butler have two young children. One of them at least goes to a local school. Their family has had remarkable health problems. Mr Butler works in the area in which their caravan is sited.

There had been a lengthy planning history at this site, including enforcement notices. The local planning authority sought to apply its understanding of the Green Belt guidance. Its view, in a nutshell, was that the siting of the caravan on this site was an inappropriate use of land within a rural part of the Green Belt and that there were no special circumstances which would justify a departure from usual policy.

Various grounds were advanced by Mr and Mrs Butler as to why their circumstances did justify the grant of permission for the siting of the caravan on the site. They sought permanent planning permission. In the event, they were granted only temporary planning permission which expired five years after the grant.

In the briefest of summaries, the Inspector concluded that their arguments did not justify the grant of permanent planning permission but did justify the grant of temporary planning permission, hence his decision. That decision was reached against a background of guidance issued by the Secretary of State to local planning authorities. Guidance in relation to the Green Belt was given in Planning Policy Guidance 2, published in January 1995 and amended in March 2001. It sets out in uncontroversial terms the fundamental aim of Green Belt policy in paragraph 1.4: to prevent urban sprawl by keeping land permanently open. It sets out the purposes of Green Belts in paragraph 1.5 which include assisting in the safeguarding of countryside from encroachment. It notes in paragraph 2.1 that the essential characteristic of Green Belts is their permanence.

The heart of the guidance which the Inspector had to consider was paragraphs 3.1 and 3.2 which provide:

Guidance in relation to gypsy sites was given by Circular 1/94, in paragraph 13 of which the Secretary of State observed:

The guidance given in that Circular was replaced in 2006 by Circular 01/2006. In paragraph 12 it set out the main intentions of the Circular which included in subparagraphs (b) and (c):

Paragraphs 41 to 46 contain transitional arrangements. Paragraph 41 required regional groupings to consider whether there was sufficiently robust information in which to establish "direct level pitch numbers". Of greater practical importance was the advice to local planning authorities given in paragraphs 43, 45 and 46. The relevant provisions are:

As is often the case in planning guidance, the guidance given in various documents pulls in opposite directions and there is some tension between them. Nevertheless, on a fair reading of the guidance, it cannot properly be concluded that the Secretary of State was advising local planning authorities that in cases of unmet need for gypsy sites, Green Belt considerations should be put aside. On the contrary, the guidance draws attention to the continuing validity of PPG2. Thus, it was rightly common ground in this case that the outcome of the appeal turned upon the proper application of PPG2, paragraphs 3.1 and 3.2.

The Inspector made the following decisions in relation to his decision to refuse permanent planning permission: first, the proposed development would represent a material encroachment on the Green Belt; secondly, there would be some loss of openness and so some harm to the purpose of the Green Belt policy; thirdly, the development would be inappropriate within the Green Belt; fourthly, the development would harm the surrounding area's rural character and mostly unspoiled appearance; fifthly, there would be little effect upon patterns of travel; sixthly, there was a significant general unmet need for additional gypsy sites in the adjacent area; seventhly, he gave little or no weight to the economic cost of unauthorised encampments or the marginal difference between the local authority's local policy guidance on the then availability of gypsy sites; eighthly, the family's educational and health needs were factors that did not support the family's location on the appeal site or in the Green Belt and did not amount to compelling reasons for occupying the site itself; ninthly, although Mr Butler had employment needs, they had arisen in circumstances in which continued occupation was in breach of enforcement notices so deserved little weight; tenthly, there was a clear lack of alternative sites available to this family, both for reasons personal to them, the tension between themselves and their relatives, and because the history of planning applications in the district showed how difficult it was to gain planning permission for a gypsy site.

In relation to the grant of permanent planning permission, the Inspector concluded that the development would be inappropriate and would cause unacceptable harm to the Green Belt and the surrounding area's character and appearance, and that that was a factor to which substantial weight should be given. He concluded that the considerations which were identified by him as of little weight had little weight. Of greater importance, he concluded that the need for more gypsy sites and employment needs were matters to which some weight should be attached, but that the former -- that is to say the need for more gypsy sites -- was "not unusual" and that the employment needs carried little weight in view of the enforcement notices. He gave greater weight to the education and health needs of the family, for which he noted a settled base would be beneficial, but concluded that they did not point only to a site in the Green Belt. He attached "significant weight" to the lack of alternative sites.

He framed his conclusion on this issue in paragraph 40:

Mr Green, who appears for the local planning authority, submits that that passage demonstrates two things. First, correctly, that the need for more gypsy sites was not a special factor, but incorrectly the Inspector approached those special circumstances as if the issue was determined by the existence or non-existence of considerations which outweigh Green Belt and other harm. Although he does not dispute the outcome, he therefore disputes the reasoning by which it was arrived at.

The heart of the Inspector' decision in relation to the permission he did grant is contained in paragraphs 42 and 43 which read:

Mr Green's makes two criticisms of that reasoning. First, he submits that the Inspector did not apply the right test. The test bis twofold: first, whether or not there were very special circumstances which justified inappropriate development; secondly, whether those circumstances outweighed harm by reason of inappropriateness and any other harm. He submits that instead of adopting that two stage test, what the Inspector has done is to analyse, first, whether or not the considerations favouring the grant of permission, outweigh harm by reason of inappropriateness or any other harm, and then, having decided that in favour of the appellants, decide that "therefore" very special circumstances existed. Secondly, he submits that the factors identified in paragraph 42 by the Inspector could not, on any reasonable view, amount to very special circumstances. He accepts, as do I, that decisions of Planning Inspectors should be benignly construed or, to use Lord Bridges's words in Save Britain's Heritage v Number 1 Poultry Limited [1991] 1 WLR 153 at 164, read with "a measure of benevolence".

Mr Green submits that the approach for which he contends was rightly approved by Sullivan J in R (on the application of Chelmsford Borough Council) v First Secretary of State [2003] EWHC 2978 Admin. The facts in that case were very different. Although the site was in the Green Belt, the only factor relied upon by the applicant for planning permission was that her two children had settled well into the local primary school which was within walking distance of the site and their education would have been disrupted if they were required to move. He considered the meaning of "very special circumstances" and concluded that they must be given their ordinary and natural meaning, that they were something beyond circumstances which were merely special. In paragraph 56 he observed:

Mr Cottle for the second and third defendants submits that in a subsequent decision Sullivan J is to be taken as having departed from that two stage approach. The decision is R (on the application of Basildon District Council) v First Secretary of State and Mrs R Temple [2004] EWHC 2759 Admin. The facts of the case need not be rehearsed in detail because the circumstances relied on were not, as in the Chelmsford case, singular but were manifold, and because of the summary which Sullivan J made of them in paragraph 10:

Nothing in South Bucks District Council v Porter [2004] 1 WLR 1953 suggests that the approach adopted by Sullivan J in Chelmsford was wrong; unsurprisingly, because that case, although cited by counsel, is not referred to in the speeches themselves.

One factor which may have led the Inspector to express himself as he did in his decision letter is a document headed "Statement of common ground" prepared by the planning experts for the local planning authority and Mr and Mrs Butler, which included the following paragraph:

Mr Cottle makes alternative submissions. First, there is nothing wrong with that approach. Secondly, on a fair reading of the decision, the Inspector adopted a correct approach. The difficulty with that submission is the use twice of the word "therefore" in paragraphs 40 and 43 of the decision. That, to my mind, even on a benign or benevolent construction, demonstrates unequivocally the Inspector's process of reasoning. He decided that because the considerations which favoured the grant of temporary permission outweighed the harm by inappropriateness and by any other reason thereby caused, so the circumstances were very special. I have no doubt that that approach was wrong in law.

I would, however, hesitate to quash the decision if it were capable of being sustained on the basis that if the correct test had been applied so the same decision could properly have been arrived at. It is therefore necessary to ask whether the factors identified by the Planning Inspector in paragraph 42 were capable of amounting to very special circumstances. I am bound to say, I do not see how they can be. First, the forthcoming assessment of the need for gypsy sites, regionally and locally, even coupled with this Council's intention to address the matter, is not a special circumstance, let alone a very special circumstance. It is one that will be commonplace in local planning authorities up and down the country. The fact that the local Council intends to address them in a joint Core Strategy and expects to allocate the sites is clearly not a special circumstance. It is the local planning authority fulfilling its obligation. Secondly, the undisputed need for gypsy sites generally cannot amount to a very special circumstance. There is a national need for gypsy sites. This local planning authority's district is no different from the picture across the country as a whole. Thirdly, the lack of any current alternative site is the closest factor identified as a very special circumstance. Mr Cottle submits that this is shorthand for a wider basket of considerations which would include the fact that Mr and Mrs Butler are of local origin, that they have children, one of whom at least goes to a local school, and the remainder of the considerations discussed by the Inspector when considering their application for permanent planning permission. I am prepared to accord to his brief reasoning in this respect something of that breadth. But to say in relation to this family that for those commonplace reasons that factor amounts to a very special factor, in my judgment, deprives the phrase of any real meaning. It is a commonplace not a very special factor.

Following Sullivan J's approach in the Basildon case, one must step back and ask whether the three factors taken together are capable of amounting to very special circumstances. In my view, they are not. They are three commonplace factors. Although a collection of ordinary and unexceptional factors can, when taken together, amount to very special circumstances, the aggregation of three commonplace factors such as these, in my judgment, cannot.

In the witness statement of Mr Marshall, the solicitor for the claimant, he gives as a cause of concern the approach which the Inspector's decision might indicate should be required of this local planning authority in other similar cases, and observes that it is difficult to see how applications could be resisted given the factors relied on by the Inspector. In a nutshell, he is concerned that if these factors amount to special factors so every case where a gypsy or traveller seeks temporary planning permission for a caravan to be stationed on a site in the Green Belt will have to be allowed. There is force in his concerns.

Standing back and viewing the decision as a whole and the factors which I have considered, the two factors taken together, plus the difficulty in seeing how the factors identified could amount to very special circumstances, require, as the Secretary of State recognises, that this decision must be quashed. I therefore quash the decision. It is unnecessary for me to make any further observations on the remaining submissions that Mr Green makes.

MR GREEN: My Lord, to that effect I seek an order for costs that reflects the concession made by the Secretary of State in his letter. That is, that the Secretary of State, the first defendant, pay the claimant's costs up to the date, we say, of receipt of his offer to submit to judgment, that is 5th November of this year, and that the second and third defendants should pay the costs from that stage to and including the costs of this hearing, to be subject to a public funding assessment under the Administration of Justice Act 1999.

MR JUSTICE MITTING: The Secretary of State until what date?

MR GREEN: Until 5th November of this year. Although he offers to pay costs up until 2nd November, that is the date on which he made the offer to submit to judgment. If your Lordship looks at the draft consent order it is paragraph 2.

MR JUSTICE MITTING: I am not going to make the Secretary of State go beyond that to which he has consented.

MR GREEN: From 2nd November up to and including today, we seek our costs from the second and third defendants.

MR JUSTICE MITTING: Mr Cottle?

MR COTTLE: My Lord, we are publicly funded so the costs should be assessed and the determination of our liability to pay those assessed costs according to section 11 of Administration of Justice Act. The only point I would make is that there were a number of grounds of appeal and one of them was not pursued. The correct order would be to have 80 per cent of costs from that date as a reflection of that.

MR JUSTICE MITTING: Well, it did not take any time. I am not going to take a long time about it now.

MR COTTLE: My Lord, what I would benefit from is an opportunity to consider the transcript once it is made available. Obviously, the concern would be, in relation to the perversity test as Sullivan J described it in one of the cases, it is a difficult process for the court to step into the shoes of a decision-maker and disagree on an assessment of factors. What the Secretary of State has said in the concession is that it is incumbent on the decision-maker to decide there are circumstances which reasonably can be described not merely as special but as very special, and it is the absence of doing that which made the Secretary of State concede the matter. The decision, however, does say in terms that these concerns combine to become sufficient to constitute the very special circumstances. That is at paragraph 43. I am really required to consider, in the light of the transcript, the possibility of a permission application in respect of that aspect of the judgment.

Furthermore, as my Lord is aware of course, I have picked out that paragraph 70 of the Doncaster decision in terms is exactly the same as the statement of common ground. That is a point of law. It would need to be considered in a measured way after seeing the transcript. I would ask for an extension of time for filing any notice until we have that transcript, perhaps two weeks after the transcript is made available given that there will be an interval. Presumably we will get it in the first or second week of January. Normally our time for appealing would have to be within 21 days of today's date. If we have until the end of January for filing a notice of appeal at least two weeks after the transcript is made available that will suffice. It will be in the light of the transcript that the Legal Services Commission will have to decide whether or not this case should go any further in the light of measured reflection on those two points, first of all on the perversity and the Wednesbury issue, and secondly on the main point of law. My Lord, I can make the application properly in respect of the first point. I do not expect you to alter from your view. It would no doubt quicken the process if you made a decision on the permission application. I am reluctant to make a permission application in relation to the second issue at this stage.

MR JUSTICE MITTING: What I am content to do is to extend your time for applying to the Court of Appeal for permission because of the intervention of the holiday and enable you to have a transcript. I do not in fact believe that you have any real prospect of success. This case illuminates questions of law already dealt with in other authorities so there is no public interest reason for going to the Court of Appeal. But you should have reasonable time in which to consider the transcript before deciding whether or not to apply to the Court of Appeal.

MR COTTLE: In those terms, if you refuse permission to appeal and grant an extension of time for filing the notice of appeal until, as I suggested, two weeks after the transcript was made available. Sometimes there is a delay in the production of transcripts.

MR JUSTICE MITTING: Production of transcripts, in my experience, where they are asked for at or immediately after the hearing, is pretty efficient. Although we may not get it before Christmas I will be very surprised if we do not have one by the beginning of the new term.

MR GREEN: I am obliged. In those circumstances could I have until the end of January.

MR JUSTICE MITTING: I will do it in the way you suggest, 14 days after receiving the transcript. That gives you certainty and you know you have 14 days to consider the transcript, take instructions, go to the LSC and decide whether or not you want to apply.

MR COTTLE: Indeed. My Lord, it would only remain for me to ask for detailed assessment of our publicly funded costs.

MR JUSTICE MITTING: Yes. The orders I make are: first, I quash the decision; second, I order the Secretary of State, the first defendant, to pay the claimant's costs up to 2nd November 2007; thirdly I order the second and third defendants to pay the claimant's costs, to be the subject of detailed assessment if not agreed, from 2nd November 2007 to date, including the hearing costs, such determination of such order to be postponed until -- sorry I have this wrong. I was intending to order that it not be enforced without leave.

MR COTTLE: The determination of liability postponed.

MR JUSTICE MITTING: Thank you. Determination of liability postponed. Next, I refuse permission to appeal and I extend the time for making an application to the Court of Appeal for permission to appeal until 14 days after the transcript of my judgment has been received by the second and third defendant's solicitors. Finally, I order a public funding assessment of second and third defendant's costs.

MR COTTLE: My Lord, there was one point in the judgment which no doubt would be picked up when the transcript was available, but you were describing what the Inspector held and the use of the word "clearly" in paragraph 42 was missed out when you were describing what the Inspector held, and you were there referring to what the inspector had held at paragraphs 42 and 43. No doubt when you see the transcript you will see the omission.

MR JUSTICE MITTING: Thank you for pointing that out, something which should itself be on the transcript and will draw it to my attention. I certainly do not wish to misrepresent the Inspector's findings.

MR GREEN: My Lord, I think it should be subject to detailed assessment if not agreed, the costs.

MR JUSTICE MITTING: Certainly. Thank you.