Connors & Ors v Secretary of State for Communities and Local Government & Ors

These are applications made by five Claimants pursuant to section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash decisions of the Secretary of State for Communities and Local Government dismissing an appeal against a refusal of planning permission. Two of the Claimants, Mrs Doran and Mrs Lee, also apply for permission to appeal under section 289 of the 1990 Act against a decision of the Secretary of State dismissing an appeal against an enforcement notice.

In brief, three of the Claimants are Irish Travellers. They are Mr Edward Connors, Mr Miley Connors (who is not related to Mr Edward Connors) and Mrs Doran. Two of the Claimants are Romany Gypsies. They are Mr Sines and Mrs Lee. They all sought planning permission to make a material change in the use of land to enable them to station caravans or mobile homes on various sites. The sites were all in the Green Belt. The Secretary of State decided to dismiss all of the appeals.

Four of the Claimants, those represented by Mr Masters, seek to challenge a policy adopted by the Secretary of State that he would consider directing that all appeals involving Traveller sites in the Green Belt be decided by him rather than by an inspector appointed on his behalf. Mr Masters submits that that policy is unlawful in that it involves discrimination contrary to Article 14 of European Convention on Human Rights (“the ECHR”) or a breach of the public sector equality duty set out in section 149 of the Equality Act 2010. All five Claimants contend that the individual decisions taken by the Defendant to dismiss their individual appeals were unlawful.

The judgment is lengthy. First, this is in part because the judgment involves five different claims. The facts in relation to each Claimant, and his or her family, are different. It is necessary to set out the facts of the individual cases in order to determine whether or not each individual Claimant has been treated lawfully. Secondly, the length of the judgment reflects in part the very large number of points taken by the Claimants in their claim forms, skeleton arguments and oral submissions. Even then, this judgment focuses on the principal claims advanced to determine whether the decisions are lawful or not. The judgment does not seek to deal with each and every point raised although all the matters raised by the Claimants have been carefully considered.

Planning permission is required for development including the carrying on of building or other works or, as here, the making of a material change of use of land: see sections 55 and 57 of the 1990 Act. A local planning authority may grant planning permission, either unconditionally or subject to such conditions as they think fit or refuse permission: see section 71 of the 1990 Act. Planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”).

In addition, a local planning authority may serve an enforcement notice where it appears to them that there has been a breach of planning control, for example the carrying on of building works or the making of a material change of use of land without permission: see section 172 of the 1990 Act. The enforcement notice may, amongst other things, require the person concerned to cease an unauthorised use or take steps to remedy any breach of planning control.

An applicant who is refused planning permission may appeal to the Secretary of State for Communities and Local Government under section 78 of the 1990 Act. In addition, an individual may also appeal against that enforcement notice to the Secretary of State under section 174 of the 1990 Act. One of the grounds of appeal is that planning permission should be granted for the material change of use. Another is that any period for complying with the enforcement notice falls short of what should reasonably be allowed.

The Secretary of State may, by regulation, prescribe classes of appeals which are to be determined by an appointed person, that is an inspector, rather than by the Secretary of State: see paragraph 1 of Schedule 6 to the 1990 Act. Paragraph 3(1) of that Schedule provides, however, that:

“3(1) The Secretary of State may, if he thinks fit, direct that an appeal which would otherwise fall to be decided by an appointed person be determined instead by the Secretary of State”

Where the Secretary of State gives a direction in relation to a particular appeal, the inspector will hold an inquiry, hear evidence and make a report and recommendations to the Secretary of State but the Secretary of State will decide whether or not the appeal will be allowed.

There are further avenues of challenge to the High Court. Section 288(1) of the 1990 Act provides that:

Section 288(4) of the 1990 Act provides that:

“(4)

This section applies to any such order as in mentioned in subsection (2) of section 284 and to any such action on the part of the Secretary of State as is mentioned in subsection (3) of that section.”

Those orders and actions include, amongst other things, a decision of the Secretary of State dismissing an appeal under section 78: see section 284(3)(b) of the 1990 Act. The powers of the High Court are set out in subsection 288(5) of the 1990 Act which provides that:

“(5)

On any application under this section the High Court—

(a)

may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;

(b)

if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”

There is also the possibility of appealing against a decision given in enforcement proceedings. Section 289(1) of the 1990 Act provides that:

“(1)

Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against a decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.”

Permission is required to appeal: see section 289(6) of the 1990 Act.

The claims relate to sites in four different local authority areas. Each of the local planning authorities have development plans for their area. In addition, there is relevant guidance contained in the National Planning Policy Framework (”the Framework”) and the Planning Policy for Traveller Sites (“the Traveller Sites Policy”), both of which are material considerations in the determination of planning applications and appeals.

Section 9 of the Framework deals with protecting Green Belt Land. Paragraphs 79 and 80 provide as follows:

“79.

The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

“80.

Green Belt serves five purposes:

•

to check the unrestricted sprawl of large built-up areas;

•

to prevent neighbouring towns merging into one another;

•

to assist in safeguarding the countryside from encroachment;

•

to preserve the setting and special character of historic towns; and

•

to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.”

The Framework then explains that the general extent of the Green Belt across England is already established. Paragraph 83 encourages local planning authorities to establish Green Belt boundaries in their local plans and only to alter them in exceptional circumstances. Paragraph 85 of the Framework gives further guidance on defining the boundaries including guidance that the Green Belt should not include land which it is unnecessary to keep permanently open.

Paragraphs 87 and 88 of the Framework provide as follows:

“87.

As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

“88.

When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”

Paragraphs 89 and 90 provide certain limited exceptions, not material to this case, in which the construction of certain buildings or particular forms of development in the Green Belt is not inappropriate.

The Traveller Sites Policy sets out the government’s planning policy for traveller sites and states that it should be read in conjunction with the Framework. Paragraph 3 records that:

“The Government’s overarching aim is to ensure fair and equal treatment for travellers, in a way that facilitates the traditional and nomadic way of life of travellers while respecting the interests of the settled community.”

Paragraph 4 then sets out a series of aims. These include encouraging local planning authorities to assess the need for sites and to work collaboratively to develop fair and effective strategies to meet need through the identification of land for sites. Another aim is to promote more Traveller site provision whilst recognising that there will always be Travellers who cannot provide their own site. Another aim is that:

“plan-making and decision-taking should protect Green Belt from inappropriate development”

There then follow a series of specific policies. Policy B, by way of example, provides that local planning authorities should set pitch targets for Gypsies and Travellers which address the likely permanent and transient site accommodation needs in their area. The policy includes local planning authorities identifying a supply of specific deliverable sites sufficient to provide five years worth of sites against the locally set targets. Policy E deals with Traveller sites in the Green Belt and is in the following terms:

“14.

Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development.

15.

Green Belt boundaries should be altered only in exceptional circumstances. If a local planning authority wishes to make an exceptional limited alteration to the defined Green Belt boundary (which might be to accommodate a site inset within the Green Belt) to meet a specific, identified need for a traveller site, it should do so only through the plan-making process and not in response to a planning application. If land is removed from the Green Belt in this way, it should be specifically allocated in the development plan as a traveller site only.”

Policy H in the Traveller Sites Policy deals with determining planning applications for Traveller sites. It reminds planning authorities that applications must be determined in accordance with the development plan unless material considerations indicate otherwise (that is the obligation imposed by section 38(6) of the 2004 Act. It notes that applications for planning permission should be assessed having regard to the policies in the Framework and the Traveller Sites Policy (which are material considerations). The policy then sets out particular issues that should be considered when dealing with planning applications. Policy H includes, at paragraph 25, the following:

“Subject to the implementation arrangements at paragraph 28, if a local planning authority cannot demonstrate an up-to-date five year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission.”

Paragraph 28 provides that the policy in paragraph 25 only applies to applications for temporary planning permission for Traveller sites made within 12 months after the policy came into force. The policy came into force some time in March 2012, when the framework itself came into force (see paragraph 27 of the Traveller Sites Policy).

It is accepted that the five Claimants, who are either Irish Travellers or Romany Gypsies, fall within the definition of Gypsy and Traveller for the purpose of the policy.

Prior to 1 July 2013, the Secretary of State’s policy was to direct that appeals for planning permission in the case of Gypsy and Traveller sites should be determined by him where the proposed development involved significant development in the Green Belt. Development was considered to be significant if it involved 3 pitches or 6 caravans.

On 1 July 2013, the Parliamentary Under Secretary of State for Communities and Local Government made a written statement which modified that policy. The statement states as follows:

“Our policy document, “Planning Policy for Traveller Sites”, was issued in March 2012. It makes it clear that both temporary and permanent Traveller sites are inappropriate development in the green belt and that planning decisions should protect green belt land from such inappropriate development.

As set out in that document and in March 2012’s national planning policy framework, inappropriate development in the green belt should not be approved except in very special circumstances. Having considered recent planning decisions by councils and the planning inspectorate, it has become apparent that, in some cases, the green belt is not always being given the sufficient protection that was the explicit policy intent of Ministers.

The Secretary of State wishes to make clear that, in considering planning applications, although each case will depend on its facts, he considers that the single issue of unmet demand, whether for Traveller sites or for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the “very special circumstances” justifying inappropriate development in the green belt.

The Secretary of State wishes to give particular scrutiny to Traveller site appeals in the green belt, so that he can consider the extent to which “Planning Policy for Traveller Sites” is meeting this Government’s clear policy intentions. To this end he is hereby revising the appeal recovery criteria issued on 30 June 2008 and will consider for recovery appeals involving traveller sites in the green belt.

For the avoidance of doubt, this does not mean that all such appeals will be recovered, but that the Secretary of State will likely recover a number of appeals in order to test the relevant policies at national level. The Secretary of State will apply this criteria for a period of six months, after which it will be reviewed.”

On 17 January 2014, the Minister made the following ministerial statement:

“The Government’s planning policy is clear that both temporary and permanent traveller sites are inappropriate development in the green belt and that planning decisions should protect green-belt land from such inappropriate development. I also noted the Secretary of State’s policy position that unmet need, whether for traveller sites or for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the “very special circumstances” justifying inappropriate development in the green belt.

The Secretary of State wishes to re-emphasise this policy point to both local planning authorities and planning inspectors as a material consideration in their planning decisions.

That statement revised the appeals recovery criteria by stating that, for a period of six months, the Secretary of State would consider for recovery appeals involving traveller sites in the green belt, after which the position would be reviewed.

The Secretary of State remains concerned about the extent to which planning appeal decisions are meeting the Government’s clear policy intentions, particularly as to whether sufficient weight is being given to the importance of green-belt protection. Therefore, he intends to continue to consider for recovery appeals involving traveller sites in the green belt.

Moreover, Ministers are considering the case for further improvements to both planning policy and practice guidance to strengthen green belt protection in this regard. We also want to consider the case for changes to the planning definition of “travellers” to reflect whether it should only refer to those who actually travel and have a mobile or transitory lifestyle. We are open to representations on these matters and will be launching a consultation in due course.”

All five Claimants applied to their local planning authority for planning permission to make a material change in the use of land from use for agriculture to use involving the stationing of one or more caravans or mobile homes. Those applications were either refused or the local planning authority failed to determine the application. The Claimants appealed. In addition, in three of the cases, those of Mrs Doran, Mr Sines and Mrs Lee, the local planning authority served enforcement notices alleging a breach of planning control. They appealed against those enforcement notices.

In each case, the Defendant directed that the appeal be determined by him. There were inquiries and reports and recommendations made by an inspector. Then the Defendant determined the appeal. The individual inspectors’ reports and the decisions tend to follow the same pattern. They identify the issues. They consider the individual considerations that arose on the appeal in terms of matters such as the Green Belt, unmet need and personal circumstances, expressing a view on the relevance and significance of those matters. Then the reports and the decisions balance the considerations overall to determine whether or not the appeal should be allowed. The relevant facts and extracts from the reports and decision letters (with the cross-referencing to paragraph numbers removed) are set out below.

Mr Edward Connors

Mr Edward Connors is an Irish Traveller. On 1 December 2011, he applied to Reigate and Banstead Borough Council for planning permission to make a material change of use of land to use for a private Gypsy and Traveller site for up to six mobile homes. The site was within the Green Belt. An earlier application for planning permission for a similar development had been refused and an appeal had been dismissed.

The application was refused by notice dated 11 July 2012 for similar reasons to the earlier application, namely the proposed development was contrary to Green Belt policy (and other issues not relevant to this claim). Mr Edward Connors appealed. As the proposed development would involve permission for up to six mobile homes, it was considered to involve significant development in the Green Belt. On 13 March 2013, therefore, the Secretary of State directed that the appeal would be determined by him not by an inspector. That decision was, of course, taken before the ministerial statement of 1 July 2013 and was based on the previous practice not on the practice announced in that statement.

An inspector held an inquiry on 15 May 2013. He reported to the Secretary of State. He described the site. He noted that Mr Edward Connors lived in a comparatively new house to the south of the site. He described the proposal which was to allow the siting of up to six mobile homes on the site. The proposed occupiers of four pitches would be Mr Edward Connors’ (1) daughter and son-in-law, namely John and Margaret Robb and their four children, (2) another daughter and son-in-law, namely Jim and Ann Moloney and their three children, (3) Patrick and Kathleen Connors and their son, and (4) Ned Connors. Two proposed pitches were intended for future occupation by family members as the children grew up.

The inspector described the relevant planning policies and summarised the case for Mr Edward Connors and for the planning authority. At paragraph 40, the inspector noted that the proposed occupiers of the site were an extended family of Irish Travellers who continued their family tradition of travelling to undertake manual work in England and sometimes overseas. They fell within the definition of Gypsies and Travellers in the Traveller Sites Policy. The inspector noted that the proposal involved inappropriate development in the Green Belt. He identified the main considerations as follows:

“Having established the above, and bearing in mind the matters agreed between the parties, I have identified the following main considerations:

•

The effect of the proposal in the openness of the Green Belt and the purposes of including land within it.

•

Whether the site is suitable for the proposed use, in terms of the noise from the adjacent motorway.

•

Other considerations which favour the proposal including the general need for traveller sites, the accommodation needs of the proposed occupiers and their personal circumstances.

•

Whether the harm to the Green Belt through inappropriateness, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development. ”

In relation to the effect on the Green Belt, the inspector said this:

“43.

One of the essential characteristics of Green Belt’s is their openness. The site would accommodate the proposed six mobile homes, together with touring caravans, parked vehicles and the ancillary domestic structures and paraphernalia which might reasonably be expected. It is likely that there would also be internal boundary treatments. The result would be a significant loss of openness.

44.

One of the purposes of the Green Belt is to assist in safeguarding the countryside from encroachment. Although there are some other buildings and structures in the vicinity the area is broadly rural, and the caravans and the accoutrements of a residential gypsy and traveller site would encroach into the countryside to the further detriment of the Green Belt.

45.

The Framework provides that substantial weight should be given to any harm to the Green Belt and by definition this must apply to inappropriate development. In this case I find that there would be substantial harm to the Green Belt by reason of inappropriateness and additional harm both through loss of openness and encroachment. The proposal therefore conflicts with national policy and [local plan] policy CO1. These matters are important material considerations, which were not contested by the appellant, and reflect the issues dealt with by the previous appeal decision. For this reason this section of the report is brief, but this does not imply that it has correspondingly limited weight. Overall this is a consideration which weighs substantially against the appeal.”

The inspector dealt with the need for and supply of Gypsy and Traveller sites in Reigate and Banstead. He concluded that there was “substantial unmet need in the borough which weighed significantly in favour of the appeal”. He considered it very likely that any new allocations of land for Traveller and Gypsy sites, or any extensions of existing sites, would be in the 70% of the borough that fell within the Green Belt. He concluded on this issue that:

“Given the current substantial unmet need it is clear that the Council is unable to demonstrate a five year supply of specific deliverable sites. This factor, together with the long standing failure to meet that need, lends significant weight in favour of the appeal.”

The inspector also considered the personal circumstances of the family. He noted that the proposal would provide a settled base which would enable the extended family to live together as a group and provide support for each other. That is part of the Gypsy and Traveller way of life which the Travellers Site Policy seeks to facilitate and the inspector considered that this factor provided some weight in favour of allowing the appeal.

The inspector noted that settled accommodation could provide benefits in terms of access to health, welfare and employment but that no specific arguments had been put forward on behalf of Mr Edwards Connors to indicate that any of those matters featured in this case. It was confirmed that the potential occupiers were already registered with the local general practitioner.

The inspector also said the following:

“71.

The educational needs of the children are put forward as giving support to the proposal. The potential occupiers of the site include 3 children of school age – John and Mary Robb (aged 10 and 6) and Margaret Maloney (aged 6). There are 5 younger children. Of the school age children, it was stated that two have occasional tutors but that the appellant was not aware of any educational provision for the remaining school age child - it is a reasonable assumption that the appellant would know if any education was being provided. The benefit of having a settled base from which education services can be accessed – both for those children currently of school ages and those who have yet to attain that age – is an important factor to be taken into account in assessing accommodation needs and this weighs significantly in favour of the proposal.

72.

There is no suggestion from any party that the proposed occupier’s needs can be met by any other alternative site. The appellant stated that a number of the proposed occupiers have to resort to camping by the roadside – although the evidence is also that some station their touring caravans within the curtilage of the appellant’s house from time to time. The planning status of this activity is not clear, but it has clearly happened for some time without action from the Council. Overall, it does not seem likely that the occupiers would have to entirely resort to the roadside, given the apparent availability of the land around the appellant’s house – although this clearly does not provide a permanent base for mobile homes.”

The inspector concluded that overall, the lack of a permanent site for the proposed occupiers, especially to facilitate the education of the children, weighed significantly in favour of the proposal.

Having considered the individual factors in turn, the inspector then set out his view of the overall planning balance and conclusions as follows.

“74.

The Framework and [Traveller Sites Policy] clearly state that gypsy and traveller sites are inappropriate development in the Green Belt. Substantial weight must attach to inappropriateness together with, in the present case, further weight as a result of the loss of openness and encroachment into the countryside. To the harm brought about as a result of the proposal itself must be added the relatively limited consequences of the increased height of the bund and the fence, which would be necessary to address the noise issue. The Framework advises that inappropriate development should not be approved except in very special circumstances, which will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

75.

This is the totality of the harm caused by the proposal, as the noise issue could be satisfactorily resolved by the use of conditions. The noise factor, allowing for mitigation, is essentially neutral in the planning balance.

76.

There are however other considerations which favour the proposal. The agreed considerable unmet need for sites within the Borough, which has potentially been underestimated, carries significant weight in favour of the appeal, along with the long standing failure of the Council to meet that need. The acknowledged lack of alternative available permanent sites for the occupiers also weighs significantly in favour of the appeal.

77.

Some weight can be given to the fact that the proposal would allow the extended family to live together as a group. However the personal circumstances of the group, particularly in relation to the education of the children, weighs significantly in favour of the proposal.

78.

Dismissing the appeal would not result in the direct loss of any of the proposed occupiers’ homes. However it would force the families to continue a generally itinerant lifestyle (even allowing for their use of the appellant’s curtilage as temporary accommodation). This would represent an interference with their home and family life and this adds further weight in favour of the appeal. The needs of children are a primary consideration and their schooling is unsatisfactory in the absence of a settled base.

79.

Having regard to the balance of consideration outlined above and the effect of the proposal on the public interest, I conclude that dismissal of the appeal would have a disproportionate effect on the rights of the families under Article 8 of the European Convention on Human Rights.

80.

The Equality Act 2010 places a Single Equality Duty on decision makers in respect of planning permission. The proposed occupants are Irish Gypsies and there is a duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between different racial groups. Dismissal of the appeal would perpetuate the disadvantage suffered by the proposed occupants due to the absence of suitable, available alternative sites to accommodate the family group. This would reduce equality of opportunity and the fostering of good relations.

81.

In the circumstances set out above, the harm by reason of inappropriateness and the additional harm to openness and the purpose of designating the Green Belt is clearly outweighed by the totality of the other considerations. On balance, I conclude that very special circumstances exist which justify this inappropriate development in the Green Belt.

82.

It is recommended that the appeal be allowed and planning permission be granted subject to conditions set out in Annex A to this report.”

The inspector therefore recommended that the appeal be allowed and planning permission granted. The inspector noted that, if the Secretary of State considered that the other considerations did not outweigh the harm, consideration should be given to granting planning permission for a temporary period of three years.

By letter dated 30 October 2013, the Defendant gave his decision on the appeal. He disagreed with the inspector’s recommendation and decided that the appeal should be dismissed and planning permission refused. The Defendant began by considering the individual considerations identified by the inspector. In relation to the Green Belt, the Defendant agreed with the inspector’s conclusion that the proposed development would result in a significant loss of openness and, in addition, would encroach into the countryside and undermine one of the purposes of the Green Belt. Consequently, the Defendant considered on this issue that:

“The Secretary of State also agrees with the Inspector that there would be substantial harm to the Green Belt by reason of inappropriateness and additional harm both through loss of openness and encroachment. He agrees that the proposal therefore conflicts with national policy and [local plan] policy CO1. On the basis of the evidence before him, the Secretary of State concludes that the proposal would have a significantly adverse impact on the Green Belt, and he considers that this is a consideration which weighs substantially against the appeal.”

The Defendant accepted that there was substantial unmet need and the planning authority was not able to demonstrate that it had a five year supply of specific deliverable sites. He considered that “this factor together with the long standing failure to meet that need, lends significant weight in favour of the appeal”.

The Defendant next considered the personal circumstances of the proposed occupiers and he attributed a different significance to these issues for the following reasons:

“15.

The Secretary of State notes that some of the proposed occupiers station their touring caravans within the curtilage of the appellant’s house from time to time; and he agrees with the Inspector that it does not seem likely that the occupiers would have to entirely resort to the roadside, given the apparent availability of the land around the appellant’s house.

16.

The Secretary of State has carefully considered the Inspector’s conclusion that, for the reasons in [paragraph 69 to 73 of the inspector’s report], the lack of a permanent settled site for the proposed occupiers, especially to facilitate the education of the children, weighs significantly in favour of the proposal. As it does not seem likely that the occupiers would have to entirely resort to the roadside if the appeal were refused, he attributes less weight than the Inspector to the personal circumstances of the proposal. However, he considers that they should be afforded some weight in the determination of the appeal. Although he considers the best interests of the children to be a primary consideration, in the circumstances of the case, as none of the children are attending school, notwithstanding that two have occasional tutors, and there does not appear to be a compelling reason for them to live on this particular site, he considers that the needs of the children should only carry some weight.”

Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal of permanent planning permission, the Defendant’s essential reasoning, building on the matters referred to earlier in his decision letter, are contained in the following three paragraphs.

“18.

The Framework provides that substantial weight should be given to any harm to the Green Belt and by definition this must apply to inappropriate development. In this case, the Secretary of State agrees with the inspector that there would be substantial harm to the Green Belt by reason of inappropriateness and additional harm both through loss of openness and encroachment (IR45). He agrees that the proposal therefore conflicts with national policy and LP policy Co1 (IR45). He also agrees with the Inspector that to the harm brought about as a result of the proposal itself must be added the increased height of the bund and the fence, which would be necessary to address the noise issue (IR74). Overall, on the basis of the evidence before him, the Secretary of State considers that the proposal would have a significantly adverse impact on the Green Belt, and he considers that this is a consideration which weighs substantially against the appeal.

…

20.

The Secretary of State agrees with the Inspector that the considerable unmet need for sites within the Borough, which has potentially been underestimated, carries significant weight in favour of the appeal, along with the long standing failure of the Council to meet that need, and the lack of alternative available permanent sites for the occupiers. He also agrees with the Inspector that some weight can be given to the fact that the proposal would allow the extended family to live together as a group. He has carefully considered the Inspector’s conclusion that the lack of a permanent site for the proposed occupiers, especially to facilitate the education of the children, weighs significantly in favour of the proposal. As he considers it unlikely that the occupiers would have to entirely resort to the roadside if the appeal were refused, he attributes less weight than the Inspector to their personal circumstances, although he considers they should be afforded some weight. Although he considers the best interests of the children to be a primary consideration, he notes that none of the children are attending school, notwithstanding that two have occasional tutors, and that there does not appear to be a compelling reason for them to live on this particular site. He therefore considers that the needs of the children should only carry some weight.

21.

The Secretary of State has carefully considered the balance of considerations in this case. In doing so he has balanced the needs of the proposed occupiers against the need to protect the Green Belt. His Written Ministerial Statement of 1 July made clear that unmet demand on its own is unlikely to outweigh harm to the Green Belt and other harm to constitute very special circumstances justifying inappropriate development in the Green Belt. Although he considers the unmet need for sites to carry significant weight in favour of the proposal, he does not consider this, in itself, sufficient to outweigh the harm to the Green Belt and other harm, which he considers very significant, to comprise the very special circumstances necessary to justify development. He considers that, even when combined with the personal circumstances of the proposed occupants and the needs of the children, to which he gives some weight, the very special circumstances necessary to justify the development do not arise.”

In relation to the decision to refuse temporary planning permission, the Defendant’s reasons were as follows:

“The Secretary of State has gone on to consider the Inspector’s conclusions with regard to temporary permission. He agrees with the Inspector that, in terms of the advice in paragraph 25 of the PPTS, the absence of an up-to-date 5 year supply of deliverable sites is a significant material consideration in favour of the appeal. However, in the circumstances of the case, he considers that the harm to the Green Belt would continue to carry substantial weight even in the case of a temporary permission. He also considers that the harm to the Green Belt’s openness and harm in terms of encroachment into the countryside would remain substantial, although he accepts that the harm to the Green Belt would come to an end when any temporary permission expired.”

The Defendant also dealt in two separate paragraphs with the question of Article 8 ECHR and the duties imposed by the Equality Act 2010. His reasons for concluding that refusal of planning permission would not involve a breach of Article 8 ECHR or the Equality Act 2010 were as follows:

“23.

In terms of interference with the appellant’s rights under Article 8 of the European Convention on Human Rights, the Secretary of State considers that these rights are qualified. He considers that it is his role as planning decision-taker to ensure that any interference with these rights is in accordance with the law and is necessary in a democratic society, applying the principle of proportionality. His decision to dismiss the appeal would not result in the direct loss of any of the proposed occupier’s homes, although it may force the families to continue a generally itinerant lifestyle (even allowing for their use of the appellant’s curtilage as temporary accommodation), and, disagreeing with the Inspector’s conclusion, he takes the view that in this case the harm to the Green Belt and other harm is such that dismissal of this appeal is a necessary and proportionate response.

24.

The Secretary of State has considered the Inspector’s comments about the Equality Act 2010 and the fact that the proposed occupants are Irish Gypsies (IR80), a protected group for the purposes of that Act. In making his decision, the Secretary of State has had due regard to the requirements of the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality of opportunity and foster good relations between those with protected characteristics and others. Following careful consideration of these matters he concludes that any impact of the dismissal of this appeal is justified and proportionate.”

For those reasons, the Defendant dismissed the appeal against the refusal of planning permission.

Mr Miley Connors

Mr Miley Connors is also an Irish Traveller. On 17 July 2012, he applied to Reigate and Banstead Borough Council for planning permission to make a material change of use of land to mixed use as a single dwelling house and use as a residential caravan site. The site was within the Green Belt.

Mr Miley Connors already owned and lived in a house on the appeal site and planning permission existed for that house. The proposal was that there be a change of use to mixed use, that is for the existing house and, in addition, the stationing on the land of three mobile homes. These would be occupied by (1) his brother and sister-in-law, Patrick and Martina Connors, (2) his sister and brother-in-law, Patrick and Ann Deleny and their children aged 19 and 14, and (3) his other brother, Eddie Connors.

Planning permission was refused by the local planning authority by notice dated 28 September 2012. He appealed to the Defendant. As the proposed development would involve permission for three mobile caravans, it was considered to involve significant development in the Green Belt. On 14 March 2013, therefore, the Secretary of State directed that the appeal be determined by him not an inspector. That direction was, of course, issued before the ministerial statement of 1 July 2013 and was based on the previous practice not on the practice announced in that statement.

The inspector held an inquiry on 8 and 9 May 2013. She reported to the Defendant on 2 July 2013. She described the site, the relevant planning policies, the proposal and summarised the case for the appellant and the local planning authority. She identified the main considerations as follows:

“i.

the impact of the development on the openness of the Green Belt and on the purposes of including land within it;

ii.

whether the development would cause harm to the character and appearance of the area having regard to its location within the AGLV and its proximity to the AONB;

iii.

whether the harm to the Green Belt by reason of inappropriateness and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.”

The inspector then considered the individual matters in turn. In relation to the Green Belt, she noted that the essential characteristics of the Green Belt were its openness and permanence. She considered that a development involving three mobile homes, an area of hardstanding and ancillary domestic paraphernalia situated on part of the site which was currently open and free from development would reduce the openness to a moderate degree.

The inspector also dealt with the question of whether the proposal would undermine the policy of safeguarding the countryside from encroachment. She considered it would not for these reasons:

“…the appeal site forms part of a cluster of built development set within the surrounding countryside. The proposed development would result in the intensification of the number of structures within the existing cluster of development. But, it would not result in an expansion of the boundaries of that cluster of development out towards the countryside. The site is also separated from the countryside to the west by the busy A217 dual carriageway and the development would have minimal impact when viewed from the open countryside to the east. Consequently, the proposal would have no discernable impact on the existing extent of the countryside and would not therefore result in conflict with the purpose of safeguarding the countryside from encroachment.”

The inspector also considered the impact of the proposed development on the character and appearance of an area of outstanding national beauty (“AONB”). The appeal site was not within the AONB and she considered that the site would “barely be visible from within these fields within the AONB”. Where it would be visible, only the tops of the mobile homes would be likely to be seen. The inspector considered that as the proposed development “would not be inside the AONB, neither would it be visible from it”, the proposed development would not be contrary to the relevant development plan policy.

The inspector noted that there was a considerable unmet need for sites within the local authority area of Reigate and Banstead. She noted that 70% of the borough lay within the Green Belt and the parties agreed that any new Gypsy or Traveller site would be likely to be in the Green Belt. In relation to the personal circumstances of the proposed occupants, the inspector said this:

“85.

Neither Patrick and Martina nor Patrick, Ann and their children have a settled base on which to reside. They spend time travelling in England and Ireland and Patrick and Ann stay on another Family’s pitch outside the Borough when that family are away travelling. The Council accepts that there are currently no alternative available sites for the extended family to reside on if planning permission is refused for this site. This provides significant weight in favour of the appeal for these potential occupants.

86.

Eddie Connors does not travel due to ill health. He currently lives in a flat some 30 minutes drive away from the appeal site and often needs to spend time in hospital. Elizabeth Connors (Miley, Patrick, Ann and Eddie’s mother) also lives in a flat next door to Eddie. Elizabeth’s care needs do not appear to be particularly out of the ordinary for an aging relative. Furthermore, they do not provide any direct weight in favour of the appeal, as she is not proposing to move into one of the mobiles currently under consideration. However, I also heard that Ann currently provides much of the care for Elizabeth, with Miley taking over when Ann is travelling. One of the reasons for the proposal in this appeal is to enable the extended family to live together as a group where they are able to provide the necessary care for their more dependant relatives. This is part of the gypsy way of life which [the Travellers Site Policy] seeks to facilitate and this provides some weight in favour of this appeal.

87.

[The Travellers Site Policy] also recognises that settled accommodation can provide benefits in terms of access to health, welfare and employment infrastructure and this benefit would apply to Patrick and Martina and Patrick and Ann, together with their daughter and son (who is still a minor, even though this was not put forward by the appellant in support of the appeal). This carries a small amount of weight in favour of the appeal.”

The inspector’s assessment on the overall planning balance was as follows:

“91.

The Framework advises that inappropriate development should not be approved except in very special circumstances. These will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. The harm caused by reason of inappropriateness and the moderate impact on openness carry substantial weight against the proposal. The additional harm in terms of its impact on the character and appearance of the area adds some further weight against the proposal in the short to medium term. Over time, and providing planting is implemented and maintained, the harm caused by this factor would reduce. The impact on the privacy of occupants of the mobile homes to the rear adds a very limited amount of additional weight against the development.

92.

In favour of the appeal is the considerable unmet need for sites within the Borough as well as the national and regional need. This carries significant weight in favour of the development as does the long standing failure of the Council to meet that need. The acknowledged lack of alternative available sites for the extended family to reside on provides significant weight in favour of the appeal. Some weight is given to enabling the extended family to live together and care for each other as a group. Enabling those who do not currently have a settled base to access health, welfare and employment infrastructure also carries a small amount of weight in favour of the appeal.

93.

Dismissing the appeal would not result in the direct loss of any of the proposed occupiers’ homes. However, the judgement in Rafferty & Jones v SSCLG & North Somerset CoA EWCA Civ 809 [2009] held that Article 8 Rights are capable of being infringed even if the caravans are not already on the land. Dismissing the appeal will force those families without a permanent base to continue their itinerant lifestyles. This would represent an interference with their home and family life and this adds further weight in favour of the appeal. Having regard to the balance of considerations outlined above and the effect of the proposal upon the public interest, I conclude that dismissal of the appeal would have a disproportionate effect upon the rights of those families without a permanent base under Article 8 of the European Convention on Human Rights. The interference would be less in terms of Eddie, as he already has settled accommodation.

94.

The Equality Act 2010 places a Single Equality Duty on decision makers in respect of planning permission. The proposed occupants are Irish Gypsies and there is a duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between different racial groups. The requirements of this Single Equality Duty have been followed in considering this appeal. Dismissal of the appeal would perpetuate the disadvantage suffered by the proposed occupants due to the absence of suitable, available alternative sites to accommodate the family group. This would reduce equality of opportunity and the fostering of good relations.

95.

In the circumstances set out above, the harm by reason of inappropriateness and the additional harm identified is clearly outweighed by the totality of the other considerations. On balance, considering the case as a whole, I conclude that very special circumstances do exist so as to justify this inappropriate development in the Green Belt. The proposal would not therefore conflict with [local plan] policy CO1.”

The inspector therefore recommended that the appeal be allowed and planning permission granted. Alternatively, if the Secretary of State disagreed, she recommended the granting of temporary planning permission for three years.

By letter dated 30 October 2013, the Defendant gave his decision on the appeal. He disagreed with the inspector’s recommendation and decided that the appeal should be dismissed and planning permission refused. He agreed that the development would constitute inappropriate development in the Green Belt. He agreed with the inspector’s assessment that the siting of mobile homes on a currently open part of the site which was free from development would reduce the openness of the Green Belt to a moderate degree.

He did not agree with the inspector on the question of the additional harm from encroachment. He considered that the development would cause such additional harm for the following reason:

“The Secretary of State notes that one of the five purposes of GBs set out in the Framework is in dispute between the parties, namely the purpose of the GB to assist in safeguarding the countryside from encroachment. The Secretary of State does not disagree with the Inspector that: the appeal site forms part of a cluster of built development set within the surrounding countryside; the appeal proposals would not result in an expansion of the boundaries of that cluster of development; or that the site is separated from the countryside to the west by the A217. However, having carefully considered the site plans and location map that are before him, he has some sympathy with the Council’s view expressed in its closing submission (Document 19) that sitting three caravans to the south of the existing house would plainly amount to encroachment into the countryside. In reaching his conclusion on the issue of encroachment the Secretary of State gives little weight to the Inspector’s comment that the development would have minimal impact when viewed from open countryside to the east. He considers that this factor should be properly considered in his assessment of the impact of the character and appearance of the area as set out at paragraph 15-17 below, but has little bearing on his assessment of the level of physical encroachment into the countryside that would arise. Overall, the Secretary of State considers that the proposals would lead to a moderate degree of harm to the GB purpose to assist in the safeguarding of the countryside from encroachment.”

For those reasons, the Defendant considered that the proposed development was inappropriate development which was harmful to the Green Belt because of both the effect on its openness, and additionally, because of the harm to the purpose of safeguarding the countryside from encroachment. He considered that substantial weight should be accorded to the harm identified.

He also disagreed with the inspector’s conclusion on harm to the AONB. He considered that great weight should be given to conserving landscape and scenic beauty within an AONB, as recognised by the Framework. Such areas had the highest level of protection. The Defendant considered that the impact on views from the AONB, as the mobile homes would be visible from within the AONB, would lead to conflict with the relevant local plan policy which should be taken into account.

The Defendant accepted that there was substantial unmet need and the planning authority was not able to demonstrate that it had a five year supply of specific deliverable sites. The Defendant next considered the personal circumstances of the proposed occupiers. His view on this was as follows:

“19.

The Secretary of State notes that the Council accepts that there are currently no alternative available sites for the extended family to reside on if planning permission is refused for this site. He also notes that those individuals named by the Inspector do not have a settled base on which to reside. The Secretary of State agrees with the Inspector that this provides significant weight in favour of the appeal in respect of these potential occupants.

20.

The Secretary of State notes that one of the reasons for the proposal is to enable the extended family to live together as a group where they are able to provide the necessary care for their more dependant relatives, and agrees with the Inspector that this is part of the gypsy way of life which the PPTS seeks to facilitate. However, the Secretary of State has also taken into account that there is no detailed supporting evidence before him regarding the care requirements of Elizabeth Connors, nor is there evidence which makes it clear to the Secretary of State how allowing the appeal for this particular site would provide significant benefits in relation to the provision of such care given that Elizabeth Connors is not a proposed site occupant herself. Overall he gives this factor limited weight in favour of this appeal.

21.

The Secretary of State has carefully considered the Inspector’s comments at [paragraph 87 of the inspector’s report]. He notes that one of the proposed occupants is a minor. Notwithstanding that the appellant did not put this forward in support of the appeal, or the absence of evidence before him in relation to the education and health needs of this child, the Secretary of State has taken into account as a primary consideration to his decision the probability that a settled base would provide the best opportunity to attend school and to register with a doctor. Overall on this consideration, the Secretary of State agrees with the Inspector that the benefits that settled accommodation can provide in terms of access to health, welfare and employment infrastructure carries a small amount of weight in favour of the appeal for the proposed occupants ….”

Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal of permanent planning permission, the Defendant’s essential reasoning, building on the matters referred to earlier in his decision letter, are contained in the following three paragraphs.

“23.

The Secretary of State has carefully considered the Inspector’s comments. Weighing against the proposal the Secretary of State has found that the proposals are inappropriate development in the GB, would reduce openness to a moderate degree and has also identified a moderate degree of harm to the GB purpose to assist in the safeguarding of the countryside from encroachment. The Secretary of State considers that overall this constitutes significant harm to the GB to which he attaches substantial weight. Added to this, he has found that the loss of existing vegetation to the south of the site would cause some harm to the character and appearance of the area in the short to medium term but that in the longer term the harm would be mitigated. The Secretary of State also concludes that some weight should be given to the conflict that he has identified with [local plan] policy CO1 on account of the harm to the views from the AONB. He agrees with the Inspector that the impact on the privacy of occupants of the mobile homes to the rear adds a very limited amount of additional weight against the development.

24.

In favour of the appeal the Secretary of State agrees with the Inspector that the considerable unmet need for sites within the Borough, as well as the national and regional need, carries significant weight in favour of the development, as does the long standing failure of the Council to meet that need. Added to this he has found that, in respect of the potential occupants who do not have a settled base, the absence of alternative available sites for the extended family to reside on provides significant weigh in favour of the appeal. Furthermore the Secretary of State has found that limited weight should be attached to enabling the extended family to live together as a group where they are able to provide the necessary care for their more dependent relatives, and that benefits in terms of access to health, welfare and employment structure attract a small amount of weight in favour of the appeal in respect of the proposed occupants ….

25.

The Secretary of State has carefully considered the Inspector’s comments at IR97 on whether a temporary planning permission should be granted. Parties agree that a three year period would be reasonable. The Secretary of State agrees that this would be an appropriate period for any temporary planning permission, and has proceeded with his balancing of considerations for a temporary permission on this basis. In considering the case for a temporary permission, the Secretary of State agrees with the Inspector that the absence of an up-to-date 5 year supply of deliverable sites is a significant material consideration. He has also taken into account the other material considerations in favour of the appeal that he has identified at paragraph 24 above.”

In relation to the decision to refuse temporary planning permission, the Defendant’s reasons were as follows:

“27.

Weighing against such a temporary permission, the Secretary of State attaches substantial weight to the harm to the GB in respect of the inappropriateness of the proposals, the harm to openness and to the GB purpose to assist in the safeguarding of the countryside from encroachment. However, setting aside the harm from the loss of existing vegetation to the south of the site, he considers that the harm that would result from a grant of permanent permission, as summarised at paragraph 23 above, would not be so great given that the proposal would be of temporary duration. In respect of the harm from the loss of existing vegetation to the south of the site, the Secretary of State considers that the initial harm resulting from a permanent permission would be no less significant for a temporary permission for a three year period, but that there would be less opportunity for the longer term benefits of the proposed planting mitigation to have an impact.

28.

In conclusion, the Secretary of State considers that the factors he has identified in favour of a grant of temporary permission, together, do not clearly outweigh the substantial harm to the GB and other harm he has identified, and he concludes that very special circumstances do not exist to justify a grant of planning permission on a temporary basis.”

The Defendant also gave his reasons for concluding that refusal of planning permission would not involve a breach of Article 8 ECHR or the Equality Act 2010 in two separate paragraphs, as follows:

“29.

In terms of interference with the appellants’ rights under Article 8 of the European Convention on Human Rights, the Secretary of State does not disagree with the Inspector that these rights are capable of being infringed even if the caravans are not already on the land, but he also considers that these rights are qualified. The Secretary of State considers that it is his role as planning decision-taker to ensure that any interference with these rights is in accordance with the law and is necessary in a democratic society, applying the principle of proportionality. He agrees with the Inspector that dismissing the appeal will force those families without a permanent base to continue their itinerant lifestyle and that this would represent an interference with their home and family life, and that the interference would be less in terms of Eddie Connors who has settled accommodation. The Secretary of State takes the view that in this case the harm to the GB and other harm is such that dismissal of this appeal is a necessary and proportionate response.

30.

In terms of the Equality Act 2010, the Secretary of State has had regard to the fact that the proposed occupants are Irish Gypsies, a protected group under that Act, and he agrees with the Inspector that there is a duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between different racial groups. The Secretary of State has had full regard to this duty in reaching his decision, but considers that, such is the level of harm that he has identified in this case, the impact of dismissing the appeal is justified and proportionate.”

His overall conclusion was expressed in the following terms:

“32.

The Secretary of State concludes that the proposals are inappropriate development in the GB and, having weighed up all the material considerations, he does not consider that the factors which weigh in favour of the proposal, either individually or cumulatively, clearly outweigh the harm that would arise from a permanent permission. In his consideration of whether or not to grant a temporary permission, the Secretary of State is also satisfied that those factors which weigh in favour of the proposal would not clearly outweigh the harm that would arise from the proposal despite its limited duration.”

For those reasons, the Defendant dismissed the appeal against the refusal of planning permission.

Mrs Bridget Doran

Mrs Doran is an Irish Traveller. On 23 January 2012, she applied to Tonbridge and Malling Borough Council for planning permission for a change of use of a site to use as a Gypsy and Traveller site with two mobile homes and two touring caravans, one day room and one utility room. The site is within the Green Belt. The local planning authority failed to determine that application within time and Mrs Doran appealed to the Secretary of State.

On 8 November 2012, the local planning authority also served an enforcement notice alleging a breach of planning control, namely use of the site as a residential caravan site, and required that use to cease within four months. Mrs Doran appealed to the Secretary of State under section 174 of the 1990 Act on the grounds that planning permission should be granted and that the period for compliance was too short.

On 16 August 2013, the Secretary of State directed that two appeals be determined by him rather than an inspector. That direction was given in accordance with the ministerial statement of 1 July 2013 that proposals for Traveller and Gypsy sites in the Green Belt may determined by the Secretary of State himself.

The inspector noted Mrs Doran had acquired the site in 2006. She and her family had occupied the site since 2007 including a period of two years with temporary planning permission granted in 2010 and which expired in April 2012. That planning permission had been granted on the basis that the acknowledged unmet need for Gypsy and Traveller sites within the borough would be addressed by the redevelopment and extension of a site owned by the county council at Coldharbour Lane, Aylesford.

At the time that the inspector visited the site, there were three caravans and a mobile home stationed on the land for residential purposes together with a day room. At that time, Mrs Doran lived there with her husband and children. Sadly, her husband has since died.

The inspector identified the main issues as follows:

“I consider these to be the extent of any harm to the GB; the effect on the character and appearance of the area; the effect of noise on living conditions of the occupants of the land and whether there are any other considerations sufficient to clearly outweigh the harm to the GB, and any other harm, thereby justifying development on the basis of very special circumstances (VSCs)”

The inspector recorded that it was agreed that the proposed development amounted to inappropriate development in the Green Belt. The inspector considered that the siting of structures on the land reduced the openness of the Green Belt and, additionally, encroached into the countryside.

The inspector then dealt with other matters such as the character and appearance of the area and noise and considered that those matters did not weigh against the grant of planning permission. The inspector then considered the need for new pitches in the borough and whether or not Coldharbour Lane would provide a suitable alternative site for the appellant and her family.

He found that there was no guarantee that Mrs Doran and her family would be able to relocate there as they were not on the waiting list. They had no intention of putting themselves forward for pitches at Coldharbour Lane as they where Irish Travellers and did not wish to move to a site where the current occupants were all English Gypsies. The inspector noted that there were sites were Irish Travellers and English Gypsies co-existed peacefully, but there were other sites where they did not. As there were no Irish Travellers at present on this site, it was conjecture as to whether Irish Travellers and English Gypsies would co-exist peacefully on this site.

The inspector also considered that the borough’s strategy involved relying on the provision of a publicly owned site for Travellers and Gypsies. He described this as a “one size fits all policy”. He considered that it was inconsistent with one of the aims of the Travellers Site Policy which was to promote more private site traveller provision and said:

“My conclusion on this matter, therefore, is that the needs of the appellant and her family cannot reasonably be met by the Council’s one-size-fits-all approach which the extended public site at Coldharbour Lane represents and I afford this matter significant weight”

The inspector also dealt with the personal circumstances and human rights issues in the following way.

“44.

Health needs, particularly the deteriorating health of the appellant’s husband, and the educational needs of the children living on the appeal site are important considerations. The Council argues that these could be met on any other settled site within the borough, including at Coldharbour Lane. However, there are no available pitches on any site other than at Coldharbour Lane and I have already found that this site would not meet the needs of the appellant and her family.

45.

In the absence of any other suitable alternative site, the appellant and her family would be deprived of their home if they were required to vacate the appeal site. In all likelihood this would force the family onto the road, with all the hardships this entails. Not only would this amount to interference with their rights under Article 8 of the Human Rights Act 1998 but it would also make access to health and, significantly, educational facilities for the children difficult. The courts have recently recognised that substantial weight must be given to the children’s circumstances.

46.

Having regard to these matters I find that the personal circumstances of the appellant and her family should be afforded substantial weight when carrying out the overall balancing exercise.”

The inspector’s conclusions on the overall planning balance in the two appeals were as follows:

“50.

The appeal development and s78 proposal both amount to inappropriate development in the GB and I give substantial weight to the harm caused by this. I also give substantial weight to the harm caused by encroachment into the GB and the reduction of openness, even though the actual harm may be relatively limited.

51.

I have found that the appeal development and s78 proposal would not result in any material harm to the character and appearance for the area and that the Council’s concerns about noise from the A25 and railway line could be addressed by appropriate conditions.

52.

Insofar as other considerations are concerned, I have found that the Council cannot demonstrate a five year supply of sites, even by its own reckoning, and that, in all likelihood, it has under-estimated the level of unmet need. I give significant weight to this matter.

53.

I have also found that the Council’s ‘one-size-fits-all’ approach to meeting the need for pitches in the foreseeable future, which is based on the 17 new pitches at Coldharbour Lane being made available to local families on a first preference basis, does not accord with the policies and advice in both the Traveller policy and The Framework which envisage a degree of choice especially when it comes to the matter of tenure. No doubt some families will depend on public pitches but there will be others including the appellant and her family who want and are able to develop their own sites. I afford this matter, and the fact that the Coldharbour Lane site is not suitable for the appellant and her family to relocate to, significant weight.

54.

Given that there is no available, suitable alternative site for the appellant and her family to move to they would, in all likelihood, be forced onto the road if required to vacate the appeal site, with all the attendant problems this would bring, including making it difficult for the family to access local doctors and schools. In this regard I heard that the appellant’s husband is seriously ill and that there are school age children living on the appeal site whose education would be disrupted if they were forced to vacate a site the family has been living on since 2007. With respect to the children’s continuing education, the courts have held that this is a matter which should be given substantial weight.

55.

Overall, when carrying out the required balancing exercise, I conclude that other considerations clearly outweigh the harm to the GB and that very special circumstances exist to justify the development as carried out and the s78 appeal proposal. Therefore, I recommend that the appeals should be allowed and that planning permission is granted both for the development already carried out and the s78 appeal scheme.

56.

I have considered whether any such permission should be granted on a temporary basis but given the fact that the appellant and her family have been living on the site for six years, including a two year period when they benefited from temporary planning permission, I have discarded this approach in favour of recommending that permanent permission be granted. However, in view of the weight I have given to the appellant’s personal circumstances, I suggest imposing a condition limiting occupancy of the site to the appellant and her family. Other conditions suggested by the Council in the event that one or both appeals are successful are considered below.

57.

In my judgment, the protection of the public interest cannot be achieved by means which would be less interfering of the rights of the appellant and her family. They are proportionate and necessary in the circumstances and would not result in a violation of their rights under Article 8 of the European Convention on Human Rights as incorporated into UK Law by the Human Rights Act 1998. I am also satisfied that permission in the terms described would comply with the Public Sector Equality duty contained in the Equality Act 2010.”

The inspector recognised that the Secretary of State may disagree with his recommendation and may refuse to allow the appeals and grant planning permission. He, therefore, also considered whether the four month period for compliance with the enforcement notice was adequate and concluded that it was not. He recommended that the appeal should be allowed on that ground and the time for compliance extended to 31 December 2015 to enable the family to find an alternative site.

By letter dated 5 March 2014, the Defendant gave his decision on the appeals. He disagreed with the inspector’s recommendation and decided that the appeals against the refusal of planning permission should be dismissed and planning permission refused.

The Defendant noted that the parties agreed that the proposed development would amount to inappropriate development in the Green Belt which was harmful and should not be permitted save in very special circumstances. He noted that the reduction in openness and the encroachment into the countryside was relatively limited. Nevertheless, he agreed that substantial weight should be given to the harm in the Green Belt unless clearly outweighed by other considerations.

The Defendant also expressed his views on other matters referred to by the inspector. These included pitch requirements. The Defendant considered that there was a realistic prospect that further sites would become available, including private sites, and that planning circumstances were likely to change in the foreseeable future. He also commented upon the availability of other sites. He said this:

“The Secretary of State notes that it is considered that the alternative site put forward by the Council as an alternative is not considered suitable for the appellant and her family for the reasons he gives. However, he further notes that the appellant was aware, when a temporary planning permission was granted by the Council in 2010, that consent was granted on the basis that additional public pitches would become available on the Kent Country Council owned site. He considers that if this site was not considered suitable, for the reasons identified by the inspector, the appellant has had the opportunity to use the stability of the temporary planning consent to search for a site and engage with the Council to ensure that their accommodation needs were taken into account. He therefore gives this matter less weight than the Inspector.”

On personal circumstances, the Defendant said this:

“The Secretary of State has given very careful consideration to the appellant’s personal circumstances. He has had regard to the deteriorating health of the appellant’s husband and the educational needs of her children and grandchildren, of which 3 are reported to be in education, living on the site. The Secretary of State agrees with the Inspector that should these appeals be dismissed the appellant and her family would be required to vacate the site and that there is a risk they would be forced onto the road. The Secretary of State acknowledges that this would be an interference with the family’s rights under Article 8 of the European Convention on Human Rights (ECHR). He takes this matter into account in the overall planning balance.”

Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal of permanent planning permission, the Defendant’s essential reasoning, building on the matters referred to earlier in his decision letter, are contained in the following paragraphs:

“17.

The Secretary of State agrees with the Inspector that the development represents inappropriate development in the GB and that he gives substantial weight to this harm and to other harm in terms of encroachment into the GB and reduction of openness.

18.

He has gone on to consider the Inspector’s reasoning with regard to need and he agrees that the Council cannot demonstrate a five year supply of sites and he gives significant weight to this matter. However, he does not accept the Inspector’s conclusion that the Scale is underestimated. As indicated in paragraph 12 above, the question of need has not been subjected to detailed scrutiny through the [development plan] process and he therefore considers the weight in favour of this matter is qualified. Furthermore, with regard to the suitability of an alternative site the Secretary of State considers for the reasons set out in paragraph 14 that they have had the benefit of residing on the site with the benefit of a temporary consent on the basis that pitches would become available at the extended Coldharbour Lane KCC owned site and he has seen no evidence to suggest that they have liaised with the Council, prior to these appeals, to seek an alternative suitable site on the basis that they had no intention of locating to the KCC site. Accordingly he gives the availability of an alternative site less weight than the Inspector.

19.

The Secretary of State has therefore gone on to carefully consider the balance of the needs of the appellant and her family against the need to protect the Green Belt. He agrees with the Inspector that the unmet need for sites and the personal circumstances of the appellant and her family, including the best interests of the children, carry substantial weight in favour of the proposal. However, unlike the Inspector, he does not consider this, in itself, is sufficient to outweigh the harm to the Green Belt and other harms to comprise the very special circumstances necessary to justify the appeal proposal. He considers that, even when combined with the personal circumstances of the proposed occupants and the best interests of the children, which he considers are a primary consideration in this case, the very special circumstances necessary to justify the development do not arise and therefore permanent planning permission is not justified.”

In relation to the decision to refuse temporary planning permission, the Defendant’s reasons were as follows:

“The Secretary of State therefore disagrees with the Inspector’s conclusions and goes on to consider whether it would be appropriate, or not, to consider whether a temporary planning permission is justified having regard to paragraph 25 of the [Traveller Sites Policy]. In terms of the advice in paragraph 25 of the [Traveller Sites Policy], the absence of an up-to-date 5 year supply of deliverable sites is a significant material consideration in favour of the appeal. However, in the circumstances of this case, he considers that the harm to the GB would continue to carry substantial weight even in the case of a 4 or 5 year temporary permission as put forward by the appellant. He considers that the harm to the GB would remain substantial and, although he accepts that it would come to an end when any temporary permission expired, he does not consider that it would thereby be outweighed by the other considerations advanced in favour of the development.”

The Defendant also gave his reasons for concluding that refusal of planning permission would not involve a breach of Article 8 ECHR or the Equality Act 2010 in two separate paragraphs as follows:

“21.

In coming to this conclusion, the Secretary of State acknowledges that the impact of this decision would interfere with the occupiers’ home and family life and the peaceful enjoyment of their property, which are protected by Article 8 and Article 1 of the First Protocol of the ECHR. The Secretary of State has also taken account of the rights of the children and grandchildren living on the appeal site and he considers the best interests of those children to be a primary consideration in the determination of these appeals. He has given this substantial weight. He has gone on to weigh this against the wider public interest, including the need to protect the Green Belt from harm and, unlike the Inspector, he concludes that dismissing the appeal against the enforcement notice and against the refusal of permanent planning permission would strike an appropriate and fair balance.

22.

The Secretary of State has considered the Equality Act 2010 and the fact that the occupants are Irish Travellers, a protected group for the purposes of the Act. In making his decision, the Secretary of State has due regard to the requirements of the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality of opportunity and foster good relations between those with protected characteristics and others. Following careful consideration of these matters he concludes that any impact of the dismissal of these appeals is justified and proportionate.”

The Defendant considered the question of whether the time for compliance with the enforcement notice was too short. He considered that four months was too short but disagreed with the inspector’s recommendation that compliance should be effected by 31 December 2015. He considered that 12 months was a reasonable period for compliance and to enable the occupiers to find alternative accommodation.

His overall conclusion was expressed in the following terms:

“Although the Secretary of State considers that the unmet need for sites and the needs of the occupants carry significant weight in favour of the proposal, he does not consider that these factors, either individually or taken together, are sufficient to clearly outweigh the harm to the GB and other harm so as to amount to the very special circumstances needed to justify granting permanent or a temporary consent. He therefore considers that the appeals under section 78 and under section 174 ground (a) should be dismissed and the appeal under ground (g) should succeed with the compliance period varied from four months to 12 months to allow time for the occupiers to look for alternative accommodation.”

For those reasons, the Defendant dismissed the appeal against the refusal of planning permission but allowed the appeal in relation to the time for compliance so that it read 12 months after the notice took effect.

Mr Sines

On 11 July 2011, Mr Sines applied to the Royal Borough of Windsor and Maidenhead Borough Council for planning permission for a change of use of a site to use for a five unit Gypsy and Traveller site. The site is within the Green Belt. The local planning authority refused that application by a notice dated 7 August 2012. Mr Sines appealed to the Secretary of State.

On 13 July 2012, the local planning authority also served an enforcement notice alleging a breach of planning control, namely without planning permission, changing the use of the site to use for the siting of caravans, mobile homes, motor homes and tents and importing hardcore and other material to form access roads and hardstanding. The enforcement notice required the use to cease and the materials to be removed within one month. Mr Sines appealed to the Secretary of State under section 174 of the 1990 Act on the grounds that planning permission should be granted and that the period for compliance was too short.

As the proposed development would involve permission for five caravans, it was considered to involve significant development in the Green Belt. On 13 March 2013, therefore, the Secretary of State directed that the appeal would be determined by him not an inspector. That direction was given before the ministerial statement of 1 July 2013 and was based on the previous practice not on the practice announced in that statement.

The inspector described the site, the planning history and the proposals. In relation to the appeal against the refusal of planning permission, the position was that Mr Sines lived in a house some way away in Virginia Water. He owned the site and an adjacent mobile home park. The site which was the subject of the planning appeals would be used for five permanent pitches for caravans to be occupied by members of Mr Sines’ extended family, namely his brother-in-law, his two daughters (one being married with three children and one due to marry shortly) and his sister-in-law and her two sons (one of whom was to marry shortly and would occupy, it seems, the fifth pitch as his home).

In relation to the enforcement notice, the position was different. The use being enforced against, and the application for planning permission, was for use of the land as a holiday caravan and camping site although Mr Sines indicated that he would be prepared to limit the number of caravans and tents on the site to five and ten respectively.

In relation to the appeal against the refusal of planning permission, the inspector found that the proposal would involve a limited reduction in the openness of the Green Belt and, in addition, some encroachment into the countryside. He considered that there would be a need for 21 pitches in the period 2012 to 2017. He considered that there was a failure by the local planning authority to identify and make available an adequate supply of Gypsy and Traveller sites and no indication of when it would be in a position to identify a five year supply of sites. In relation to personal circumstances, the inspector said this at paragraph 139 of his report:

“The appellant’s case does not rely on personal circumstances, save that the intended occupants are gypsies, a matter which is not in dispute. These are only advanced as an additional material consideration if they are considered to be pivotal to the balancing exercise, in which case the appellant accepts that a personal occupancy condition would be appropriate on any permission granted. However, none of the intended occupants or the appellant appeared at the inquiry and they have not provided personal statements. Consequently, there is no direct evidence before me as to their immediate accommodation, health or education needs, other than as set out in Mr Brown’s proof of evidence. Consequently, I can only give limited weight to personal circumstances in the overall balancing exercise.”

The inspector’s conclusions on this appeal were as follows:

“150.

In carrying out the overall balancing exercise in GB cases, The Framework requires that substantial weight should be given to any harm to the GB and states that very special circumstances will not exist unless the potential harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

151.

The proposal would amount to inappropriate development. It would also result in a reduction in openness and encroach into the GB beyond a well-defined settlement boundary. Whilst any actual harm to the GB may be relatively limited it still has to be given substantial weight in the overall balancing exercise and I conclude that the proposal would conflict with [local plan] Policies GB1 and GB2 and the relevant provisions of the Framework in this regard.

152.

In the context of nearby development and what the Traveller policy has to say about gypsy and traveller sites in rural or semi-rural settings, the limited harm likely to be caused to the character and appearance of site and its surroundings would be acceptable. The Council has not suggested or sought to demonstrate otherwise.

153.

The Council now accepts that its concerns about flood risk to the proposal could be addressed by conditions. I share that view and conclude that the proposal would not conflict with the relevant policies in the Framework or the advice in the TG document.

154.

I have also found that the Council’s concerns about highway safety, particularly the use of a substandard access, could be addressed by the appellant’s willingness to set back a section of lawful walling. Contrary to the Council’s position, I consider this could be treated as a minor amendment to the proposal and secured by condition. The location of the proposed refuse and recycling store could also be dealt with by conditions and proposed amendments to the internal road layout would ensure compliance with the HA’s adopted standards. Therefore, I conclude that the proposal would not result in any material harm to highway safety or conflict with LP Policies T5 and P4 or relevant policies in The Framework in this regard.

155.

There are no sites available to meet the level of need identified in the recent GTAA commissioned by the Council and no alternative sites which the intended occupants, all of whom are gypsies, could occupy. Nor does the Council have a five year supply of gypsy and traveller sites or any clear timetable for identifying such a supply, as required by the Traveller policy. None of these matters is in dispute and I have afforded them significant weight.

156.

As a consequence of its failure to meet the current level of unmet need and demonstrate an up-to-date five year supply of deliverable sites the Council has yet to comply with its duties under the Housing Act 2004. I have also found that it is in breach of the Equality Act 2010 in this regard. Its continuing failure to meet the need for additional sites means that it is also failing to facilitate the gypsy way of life, one of the overarching aims of the Traveller policy, and causing interference with the Human Rights of gypsies and travellers in need of accommodation within the borough, including the intended occupants of the appeal site. However, the appellant is only advancing personal circumstances as an additional material consideration if they are considered pivotal to the overall balancing.

157.

The Appeal A proposal’s off-site impacts would be mitigated by the submitted unilateral undertaking which secures developer contributions towards the costs of providing or improving a range of local facilities, infrastructure and services. In concluding that the proposal would not, therefore, conflict with [local plan] Policies T6, R3 and IMP1, I have not afforded any weight to those element of the undertaking directed towards public art and heritage features as I have found that these do not meet the tests set out in paragraph 204 of the Framework.

158.

Overall, when carrying out the required balancing exercise, my conclusions are that other considerations clearly outweigh the harm to the GB and that very special circumstances exist to justify the development. However, the Council has demonstrated that it is making progress towards identifying and meeting the level of need for gypsy and traveller sites in the borough and the thrust of the Traveller policy is that the assessment of need and site allocation to meet any perceived need should come about through a measured and systematic approach. Therefore, I consider it would be appropriate to limit the extent of any permission to a temporary period.

159.

As progress so far has been slow and there is little or no prospect of this situation changing in the short term, not least because of the considerable constraints on the Council finding new sites due to the extend of the GB in the borough, I consider that a relatively long four year temporary permission would be appropriate. This should enable the Council to demonstrate whether this approach is capable of identifying and delivering a better site than the appeal site; in the meantime, the harm caused by a temporary consent would, by definition, be less than would be the case if permanent permission were to be granted.

160.

In my judgment, the protection of the public interest cannot be achieved by means which would be less interfering of the rights of gypsies and travellers in need of accommodation in the borough. They are proportionate and necessary in the circumstances and would not result in a violation of their rights under Article 8 of the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998. I am also satisfied that permission in the terms described would comply with the Public Sector Equality Duty contained in the Equality Act 2010.”

In relation to the appeal against the enforcement notice, and planning permission for a caravan site, the inspector considered that the reasons for permitting the development did not outweigh the harm caused to the Green Belt. He therefore recommended dismissing that appeal and refusing to grant planning permission for that development. He also found that one month was an adequate time for compliance with the enforcement notice.

By letter dated 19 December 2013, the Defendant gave his decision on the appeal. He disagreed with the inspector’s recommendation that the appeal against the refusal of planning permission should be allowed. He decided that that appeal should be dismissed and planning permission refused.

The Defendant considered first the individual considerations. He agreed that the development would constitute inappropriate development in the Green Belt. He, too, concluded that the local planning authority did not have a five year supply of Gypsy and Traveller sites and no clear timetable for identifying such a supply. In relation to personal circumstances, the Defendant noted that:

“20.

The Secretary of State notes that the proposed development consists of five permanent pitches all of which are intended for occupation by members of the appellant’s extended family, which includes three young children, one of which is of school age but not the appellant himself.

21.

In determining the case, the Secretary of State has given particular consideration to the best interests of the children, which he considers to be a primary consideration. He understands that the school age child attends a school in Lyne which is attended by other traveller children and where teachers are familiar with supporting children with a nomadic lifestyle. However, the Secretary of State has no evidence that any children would be made homeless or forced into a roadside living if the appeal were dismissed, or that, in these circumstances, the child currently in education at the school in Lyne could not continue there.

22.

For the reasons in [paragraph 139 of the inspector’s report], he agrees with the Inspector that only limited weight can be given to the personal circumstances of the proposed occupiers in the overall balancing exercise.”

Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal of permanent planning permission, the Defendant’s essential reasoning, building on the matters referred to earlier in his decision letter, are contained in the following paragraph:

“The Secretary of State has carefully considered the balance of considerations in Appeal A in relation to the grant of a permanent permission. In doing so he has balanced the needs of the proposed occupiers against the need to protect the Green Belt. His Written Ministerial Statement of 1 July made clear that unmet demand on its own is unlikely to outweigh harm to the Green Belt and other harm to constitute very special circumstances justifying inappropriate development in the Green Belt. Although he considers the unmet need for sites to carry significant weight in favour of the proposal, he does not consider this, in itself, sufficient to outweigh the harm to the Green Belt and other harm, which he considers substantial, to comprise the very special circumstances of the intended occupiers and the needs of the children, to which he gives limited weight, and agrees with the Inspector that only limited weight should be given to the personal circumstances overall in this particular case (IR139). As a result he does not consider the personal circumstances tip the balance in favour of the intended occupiers so as to constitute very special circumstances necessary to justify the development.”

In relation to the decision to refuse temporary planning permission, the Defendant’s reasons were as follows:

“The Secretary of State has gone on to consider the Inspector’s conclusions with regard to temporary permission. He considers that in this case the absence of an up-to-date 5 year supply of deliverable sites is a significant material consideration in favour of the appeal because there has been a failure by the Council to identify and make available an adequate supply of gypsy and traveller sites over the years contrary to the [Traveller Sites Policy]. However, in the circumstances of the case, he considers that the harm to the Green Belt would continue to carry substantial weight even in the case of a temporary permission. He also considers that the harm to the Green Belt’s openness and harm in terms of encroachment into the countryside would remain substantial, although he accepts that the harm to the Green Belt would come to an end when any temporary permission expired.”

The Defendant also gave his reasons for concluding that refusal of planning permission would not involve a breach of Article 8 ECHR or the Equality Act 2010 in two separate paragraphs as follows:

“The Secretary of State has considered the Inspector’s comments about the Equality Act 2010 and the fact that the proposed occupants are Romany Gypsies (IR156), a protected group for the purposes of that Act. In making his decision, the Secretary of State has had due regard to the requirements of the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality of opportunity and foster good relations between those with protected characteristics and others. Following careful consideration of these matters he concludes that any impact of the dismissal of this appeal is justified and proportionate.”

The overall conclusion is expressed in the following terms:

“The Secretary of State considers the unmet need for sites carries significant weight in favour of the proposal. However, he does not consider this, in itself, sufficient to outweigh the harm to the Green Belt and other harm, which he considers significant, to comprise the very special circumstances necessary to justify development. In determining the case, the Secretary of State has given particular consideration to the best interests of the children, which he considers to be a primary consideration. However, he considers that, even when combined with the personal circumstances of the proposed occupants and the needs of the children, to which he also gives limited weight, the very special circumstances necessary to justify the development on a permanent basis do not arise. In the circumstances of the case, he considers that the harm to the Green belt would continue to carry substantial weight even in the case of a temporary permission.”

The Defendant therefore dismissed that appeal and refused planning permission for the making of a material change of use of land to use for a five unit Gypsy or Traveller caravan site. He also dismissed the appeal against the enforcement notice.

Mrs Lee

Mrs Lee is a Romany Gypsy. On 25 October 2011, Mrs Lee applied to Runnymede Borough Council for planning permission for a change of use of a site to allow the retention and siting of one residential mobile home to be used to accommodate one Romany Gypsy family. The site is within the Green Belt. The local planning authority refused that application by a notice dated 16 July 2012. Mrs Lee appealed to the Secretary of State.

On 20 July 2012, the local planning authority also served an enforcement notice alleging a breach of planning control, namely without planning permission, changing the use of the site to mixed use comprising a commercial use and the stationing of one mobile home in independent residential use as a Gypsy site. The enforcement notice required the use to cease, the removal of the mobile home and hardstanding, fencing and a shed within nine months. Mrs Lee appealed to the Secretary of State under section 174 of the 1990 Act on the grounds that planning permission should be granted and that the period for compliance was too short.

On 16 September 2013, the Secretary of State directed that the two appeals be determined by him rather than an inspector. That direction was given in accordance with the ministerial statement of 1 July 2013 that proposals for Traveller and Gypsy sites in the Green Belt may be determined by the Secretary of State himself.

The inspector held a hearing. He described the site and the proposal. Essentially, Mrs Lee lives in a semi-detached house. The area adjacent to the house, which formed the appeal site, was part of an adjoining commercial yard. The proposed development was for a residential mobile home sited in that commercial yard. A residential mobile home had been stationed on the appeal site without planning permission and was occupied by Mrs Lee’s daughter and son-in law and their three children.

The inspector identified the main issues as follows:

“As it is not in dispute that the appeal development amounts to inappropriate development in the Green Belt, I consider the main issue is whether there are any material considerations sufficient to clearly outweigh the harm to the Green Belt (GB) and any other harm, including to character and appearance, thereby justifying the proposal on the basis of very special circumstances.”

The inspector dealt first with the individual considerations. He noted that it was accepted that the development was inappropriate development in the Green Belt. That resulted in a limited reduction in openness because of its relatively small scale. However, the inspector considered that the harm to the Green Belt should be given substantial weight. The inspector found that there was unmet need in the borough for Gypsy and Traveller sites, that the local planning authority did not have a five year supply of pitches and it was unlikely to have identified, let alone provided, such a supply before 2015.

The inspector dealt with the personal circumstances of the proposed occupants in the following terms:

“The couple occupying the appeal site, Victoria and Michael, have a baby and two other young children in full time education living with them. Victoria, the appellant’s daughter, has a medical condition needing regular treatment and I heard that there is a level of mutual support and dependency, including over childcare arrangements, between mother and daughter who, until she married, lived at home. The daughter’s husband, Michael, on the other hand, has always lived in a caravan and has an aversion to living in bricks and mortar.”

He noted that the local planning authority did not dispute the need to live in a caravan relatively close to the appeal site. He noted that the only site where pitches were available was Walnut Tree Farm but that would be unlikely to be suitable as Mrs Lee’s family were Romany Gypsies and the occupants of that other site were Irish Travellers. The inspector considered that they would be unlikely to be made welcome at the other site and would not wish to relocate there. The inspector concluded that:

“33.

It is likely, therefore, that if the current appeals were to fail the occupants would move onto another unauthorised site, in all likelihood in the GB, with all the attendant problems this would bring, including to the overall detriment of Victoria’s health if she could no longer be seen by her current doctor and the children’s continuing education if they had to move school. This would amount to interference with the family’s rights under Article 8 of the Human Rights Act 1998.

34.

The courts have established that when considering the proportionality of a requirement that an individual leave his home relevant considerations including whether the home was established have to be taken into consideration. It has also been established unlawfully that if very special circumstances could be established simply by relying on a catalogue of hardship the concept would be devalued and the planning system undermined. However, the courts have also recently held that all family interests, including the best interests of children, must be taken into account and assessed in cases where Article 8 is engaged.”

The inspector’s conclusion on the overall balancing exercise was in the following terms:

“35.

I have found that the appeal development amounts to inappropriate development in the GB and has resulted in a limited reduction in openness. The harm to the GB has, therefore, to be afforded substantial weight. The harm caused to the character and appearance of the area, by contrast, is limited and I have afforded this only limited weight.

36.

Against the harm identified it is necessary to weigh the other considerations advanced by the appellant. I have found that there is a persistent unmet need for pitches in the borough, that the Council does not currently have a five year supply of pitches, and is unlikely to have one before 2015, and that there is currently no suitable available alternative site for the family occupying the appeal site to move to. I have afforded these matters significant weight.

37.

These other considerations, coupled with the personal circumstances of the occupants of the appeal site and the fact that they would be required to vacate the site were the appeals to fail, with all the hardship this would entail, have to be balanced against the general public interest of upholding the planning policies applicable to the area. In my judgment, the public interest in pursuing the legitimate aims of protecting the GB from inappropriate development could be adequately protected by granting temporary planning permission for a period of 3 years, as suggested by the Council, personal to the current occupants.

38.

Taking all of these ‘other considerations’ together, I find that very special circumstances exist to clearly outweigh the harm to the GB. My decision would strike a balance between the interference of the family’s rights under Article 8 of the Human Rights Act 1998 and allowing time for the Council to identify the required 5 year supply of gypsy and traveller pitches and deliver a range of alternative sites in the borough. The other conditions suggested by the Council, which I discuss below, would further limit the harm to the GB caused by the appeal development.”

The inspector, therefore, recommended allowing the appeal and granting planning permission. In case the Secretary of State disagreed with that recommendation, he also considered the question of whether the time for compliance with the enforcement notice was too short. He concluded that it was because of the difficulties in finding a suitable alternative site in the area. He recommended that the time for compliance be varied from nine months to eighteen months.

By letter dated 19 December 2013, the Defendant gave his decision on the appeals. He disagreed with the inspector’s recommendation that the appeal against the refusal of planning permission should be allowed. He decided that the appeal should be dismissed and planning permission refused.

Dealing with the individual considerations first, the Secretary of State agreed that the development would constitute inappropriate development in the Green Belt. He, too, concluded that, given the current level of unmet need, the local planning authority did not have a five year supply of Gypsy and Traveller sites and there had been a long standing failure to meet that need. He considered that those matters lent significant weight in favour of the appeal

In relation to personal circumstances and human rights issues, the Defendant considered that:

“11.

The Secretary of State has given careful consideration to the appellant’s personal circumstances, and has given significant weight to the best interests of the children as a primary consideration. He has also taken account of the fact that the appellant’s daughter has a medical condition requiring regular treatment and that there is a level of mutual support and dependency between her and the appellant. He also notes that the Council does not dispute that the occupants of the site need to live in a caravan close to the appeal site and, for the reasons given by the Inspector, the Secretary of State agrees with him that Walnut Tree Farm would not provide a suitable alternative. The Secretary of State also agrees with the Inspector that, should the appeals be dismissed, the likelihood is that the appellant’s family would move to another unauthorised site to the detriment of the daughter’s health and of the children’s education should they need to move schools. The Secretary of State acknowledges that this would amount to interference with the family’s rights under Article 8 of the European Convention on Human Rights (ECHR), and this is a matter which he considers in the overall balance below.”

Having considered the individual matters, the Defendant then considered the overall planning balance. In relation to the refusal of permanent planning permission, the Defendant’s essential reasoning, building on the matters referred to earlier in his decision letter, are, essentially, contained in the following paragraphs:

“12.

The Secretary of State agrees with the Inspector that there would be substantial harm to the GB by reason of inappropriateness and the limited reduction in openness, while the harm caused to the character of the area is limited and so should be afforded limited weight. Against this harm, he also agrees with the Inspector that the persistent unmet need for sites within the Borough, the lack of a five year supply of pitches, and the lack of suitable alternative permanent sites for the occupiers all carry significant weight in favour of the appeal.

13.

The Secretary of State has therefore gone on to carefully consider the balance of the needs of the proposed occupiers against the need to protect the GB. Although in this case he considers that the unmet need for sites and the personal circumstances of the appellant and the occupants, including the best interests of the children, carry significant weight in favour of the proposal, he does not consider this, in itself, sufficient to outweigh the harm to the GB and other harm so as to comprise the very special circumstances necessary to justify the appeal proposal. He considers that, even when combined with the personal circumstances of the proposed occupants and the needs of the children, the very special circumstances necessary to justify the development do not arise.”

The Defendant also concluded that refusal of planning permission would not involve a breach of Article 8 ECHR for the following reason:

“In coming to this conclusion, the Secretary of State acknowledges that the impact of this decision would interfere with the occupiers home and family life and the peaceful enjoyment of their property, which are protected by Article 8 and Article 1 of the First Protocol of the ECHR, and he has taken account of the rights of the children involved as a primary consideration. He has given this substantial weight. He has gone on to weigh this against the wider public interest, including the need to protect the GB and the countryside from harm and, unlike the Inspector (IR38), he concludes that dismissing the appeals against refusal of permanent planning permission would strike an appropriate and fair balance.”

In relation to the decision to refuse temporary planning permission, the Defendant’s reasons were as follows:

“The Secretary of State has gone on to consider the Inspector’s conclusions with regard to temporary permission at IR37-38. He agrees with the Inspector that, in terms of the advice in paragraph 25 of the [Traveller Sites Policy], the absence of an up-to-date 5 year supply of deliverable sites is a significant material consideration in favour of the appeal. However, in the circumstances of this case, he considers that the harm to the GB would continue to carry substantial weight even in the case of a 3 year temporary permission as recommended by the Inspector. He considers that the harm to the GB would remain substantial and, although he accepts that it would come to an end when any temporary permission expired, he does not consider that it would thereby be outweighed by the other considerations advanced in favour of the development.”

The overall conclusion is expressed in the following terms:

“Although the Secretary of State considers that the unmet need for sites and the needs of the occupants carry significant weight in favour of the proposal, he does not consider that these factors, either individually or taken together, are sufficient to clearly outweigh the harm to the GB and other harm so as to amount to the very special circumstances needed to justify granting permanent consent. He therefore considers that the appeals under section 78 and under section 174 ground (a) should be dismissed and the appeal under ground (g) should succeed with the compliance period varied from nine months to 18 months to allow time for the occupiers to look for alternative accommodation.”

The Defendant therefore dismissed that appeal and refused planning permission. In relation to the appeal against the enforcement notice, he dismissed the appeal on the ground in section 174(2)(a) of the 1990 Act (that planning permission should be granted for the development). He allowed the appeal on the ground that the time for compliance was too short and varied that from nine months to eighteen months from the date that the enforcement notice took effect, that is to 17 August 2015.

All five claimants challenge the decisions dismissing the appeal against the refusal of planning permission by applications made under section 288 of the 1990 Act. In addition, Mrs Doran and Mrs Lee seek permission to appeal against the dismissal of their appeals against the enforcement notice under section 289 of the 1990 Act.

Although the grounds have been expressed differently at different times, the principal issues as they emerged from the claim forms, the skeleton argument and oral submissions are, in essence, as follows:

Mr Masters on behalf of the first four claimants first sought to challenge the lawfulness of the policy announced on the 1 July 2013 that consideration would be given to directing that the Secretary of State determine any appeal involving a Traveller or Gypsy site in the Green Belt. Mr Masters’ essential submission was that this involved unjustified differential treatment of Travellers and Gypsies as compared with those seeking planning permission for conventional housing in the Green Belt whose appeals may be determined by inspectors not the Secretary of State. He submitted, in effect, that that was to treat people differently by reason of their race or ethnicity. It would involve, he submitted, applying different procedures to Travellers and Gypsies as compared with persons who were not Travellers or Gypsies.

That, Mr Masters submitted, amounted to a breach of Article 14 ECHR. Article 14 ECHR is headed “Prohibition of Discrimination” and provides that

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

Further, Mr Masters submits that the decision to change the criteria for calling in appeals involving Travellers and Gypsies seeking planning permission for sites in the Green Belt involved a breach of the public sector equality duty in section 149 of the Equality Act 2010 which provides, so far as material, that:

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to—

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it”

Mr Masters submits that there is no evidence at all from the Defendant to indicate that he did have due regard to that need before the making of the ministerial announcement.

There are two difficulties with Mr Masters’ challenge to the 1 July 2013 announcement to alter the criteria by which decisions were taken as to whether or not to direct that appeals be determined by the Secretary of State.

First, in relation to three of the claimants that he represents, the decisions were taken before the 1 July 2013. In the cases of Mr Edward Connors, Mr Miley Connors and Mr Sines, the decisions were taken on the basis of the pre-existing policy that appeals involving significant development in the Green Belt would be determined by the Secretary of State. There is no challenge to the lawfulness of that earlier policy. In the case of these three claimants, therefore, the decision that their appeals be determined by the Secretary of State were not influenced by 1 July 2013 announcement. The lawfulness of the directions in their cases cannot have been affected by any alleged flaw in the later ministerial announcement.

In relation to the fourth Claimant, Mrs Doran, the Defendant directed that her appeal be determined by him on 16 August 2013, that is after the 1 July 2013 ministerial announcement. Her appeal would not, it seems, have been called in for determination by the Secretary of State himself under the previous policy. In Mrs Doran’s case, however, there other are other reasons why the current proceedings are not ones in which she (or, for that matter, the other claimants) can challenge either the 1 July 2013 ministerial announcement or the direction that the appeal be determined by the Secretary of State rather than an inspector appointed for that purpose.

Mrs Doran brings two claims. The first is an application under section 288 of the 1990 Act. That section sets out a statutory procedure whereby the High Court may consider an application to quash certain orders and actions. The procedure applies to the orders and action set out in section 284(2) and (3) of the 1990 Act. Those do not include decisions under section 79 of, and paragraph 3 of Schedule 6 to, the 1990 Act, to direct that an appeal is to be determined by the Secretary of State rather than an inspector. Nor do they include policies governing the criteria by which such directions are to be made. An application under section 288 of the 1990 Act is not, therefore, an available means of challenging such directions or policies.

It would, in theory, be open to the court to direct that the claim form in the section 288 proceedings stand as a claim form in judicial review proceedings (where the court could, in principle, consider the lawfulness of the ministerial announcement or the direction that the appeal be determined by the Secretary of State himself). In my judgment, however, it would not be appropriate, at this late stage in proceedings, to seek to turn a challenge to the substantive decision on the appeal against the refusal of planning permission into a challenge on the different question of the procedure governing how such appeals will be decided. Any challenge to that policy, or the direction that the appeal be determined by the Secretary of State, should have been made promptly and in any event within 3 months of the policy or direction under challenge. Evidence would have been required to deal with such challenges. It is not appropriate, given the stage which the challenge to the decision of 5 March 2014 dismissing the planning appeal has now reached, to seek to distort that claim and turn it into a challenge to a policy announced on 1 July 2013 or a direction given on 16 August 2013 that Mrs Doran’s appeal be determined by the Secretary of State.

The second claim is an application for permission to appeal against the decision dismissing the appeal against the enforcement notice. Pursuant to section 289 of the 1990 Act, an appeal can be made where the Secretary of State gives “a decision in proceedings on an appeal under Part VII” that is, an appeal against an enforcement notice. In my judgment, the ministerial announcement was not such a decision. It was a statement as to how the Secretary of State would approach the exercise of his discretion under paragraph 3 of schedule 6 to the 1990 Act.

Mr Whale, on behalf of the Secretary of State, also submitted in his skeleton argument that there was no jurisdiction to entertain a challenge to a direction on an appeal under section 289 of the 1990. In my judgment, that is not correct. That section provides for an appeal against a decision “in proceedings on an appeal under Part VII”, that is, a decision in an appeal against an enforcement notice. In this section, “decisions” include a direction: see section 289(7) of the 1990 Act. The 3^rd Claimant could, in principle, have sought permission to appeal against the direction of 16 August 2013 as that was a decision given in proceedings on an appeal under Part VII of the 1990 Act. In principle, the court would have had jurisdiction to hear an appeal under section 289 of the 1990 Act against a direction that the appeal be determined by the Secretary of State not a person appointed by him.

The difficulty with treating this appeal as an appeal against the direction of 16 August 2013 is, in fact, a different one. Any application for permission to appeal would have had to be made within 28 days after notice is given of that decision: see CPR Practice 52D para. 26.1. The claim form here was not issued until 2 April 2014, over seven months after the direction was given. If Mrs Doran had wished to use an appeal under section 289 to challenge the direction, and to raise the procedural issue of who was to determine her substantive appeal, she should have sought permission to appeal within 28 days of the direction being given on 16 August 2013. It would not be appropriate now to permit a late challenge to the direction that the Secretary of State determine the appeal given that the challenge is brought very late and, indeed, after the substantive appeal has been heard and determined. It would not be appropriate now, in my judgment, to seek to distort a challenge to the substantive decision on the planning appeal, given on 5 March 2014, to accommodate a different legal challenge, namely to the direction given on 13 August 2013, essentially as a vehicle to challenge the lawfulness of the ministerial announcement of the 1 July 2013. I am satisfied that declining to allow a late appeal against the direction of 13 August 2013 will not result in any injustice in Mrs Doran’s case. The lawfulness of the actual substantive decision to dismiss the appeal against the enforcement notice and to refuse planning permission will be the subject of careful scrutiny in these proceedings. Similar considerations apply in relation to Mr Sines and his appeal against the enforcement notice in his case.

Furthermore, I was informed during the hearing that legal aid has been given to another individual to enable that individual to bring judicial review proceedings in relation to the direction that her appeal be determined by the Secretary of State. The wider issues surrounding the lawfulness of the Secretary of State’s approach would, in my judgment, be better considered in proceedings brought for that purpose.

For completeness, I note that Mr Masters submitted that there was no other appropriate remedy to deal with challenges to the policy, or the direction that a planning appeal be determined by the Secretary of State. He therefore submitted that section 288 or section 289 of the 1990 Act ought to be interpreted in a way which enabled the court in these proceedings to deal with any allegation of breach of Articles 8 or 14 ECHR in relation to the directions that the appeals be determined by the Defendant. He relied on, amongst other authorities, R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 A.C. 295. In my judgment, the argument is misconceived. There were other available mechanisms by which the High Court could have considered whether the ministerial announcement or the direction in Mrs Doran’s case involved any breach of her Convention rights. She chose not to bring such proceedings. The current proceedings, in the form of a section 288 application and an appeal under section 289 of the 1990 Act in relation to the decision of 5 March 2014 to dismiss the planning appeals are not appropriate mechanisms for seeking to challenge a policy announced on 1 July 2013 or a direction given on 16 August 2013 that her appeal be determined by the Secretary of State.

There was also a submission by Mr Masters that there was a breach of Article 6 ECHR in that the Secretary of State was not a fair and independent tribunal to determine the substantive planning appeals. Again, reliance was placed upon the Alconbury decision. In terms of assessing whether there is a breach of Article 6, consideration needs to be given to the system as a whole. The decisions of the Secretary of State will be subject to review by the courts. So far as any factual issues are concerned, the inquiry before the inspector enabled the parties to produce all the factual material that they wished. The inspector set out the relevant facts in each case. None of the Claimants are suggesting that the facts, based on the evidence they produced, have been inaccurately stated. The issues are whether the decisions on the overall planning balance, given those facts, are correct as a matter of law and whether the decisions are compatible with the Claimants’ Convention rights. This court is able to deal fully with those issues. The complaint of a breach of Article 6 is not therefore made out.

Mr Masters, on behalf of the first four claimants, also submitted that the approach to dealing with appeals by Travellers and Gypsies in relation to sites in the Green Belt led to unfairness and a breach of Article 14 ECHR in terms of the substantive decisions reached in these appeals. He submitted that the policy led to the application of different and stricter standards in relation to decisions involving Travellers and Gypsies in Green Belt cases as compared with cases involving non-Travellers and Gypsies seeking conventional housing in the Green Belt. The evidence in this case, he submitted, disclosed a clear difference in treatment between Gypsies and Travellers and non- Gypsies and Travellers in terms of granting or refusing planning permission for development in the Green Belt and, further, he submits that that differential treatment is unjustified.

This Court has jurisdiction to determine whether the decisions dismissing the appeals in individual cases do or do not involve any element of discrimination contrary to Article 14 ECHR. Equality of treatment is a fundamental value underlying both the law of England and Wales and the European Convention on Human Rights. Allegations of discriminatory treatment need careful scrutiny. That, perhaps, is particularly important where, as here, the court is dealing with ethnic groups with a particular traditional life style which is not always understood or appreciated by the wider community. Equally, it is important that courts proceed on the evidence before them and reach decisions based on the law and that evidence.

Against that background, it is important to consider carefully the evidence and the submissions. Mr Masters’ underlying claim is that different, stricter criteria are being applied to Travellers and Gypsies seeking planning permission to station caravans and mobile homes in areas of the Green Belt as compared with those seeking conventional housing who are not Travellers or Gypsies. Mr Masters sought to establish that contention by the following steps.

First, his initial contention in his skeleton argument was that since the 1 July 2013 announcement the evidence disclosed that not one Traveller or Gypsy site in the Green Belt had been granted planning permission on an appeal determined by the Secretary of State. The statistical evidence produced in this case is contained in the second witness statement of Ms Joanna Grigson. Details were obtained from the planning inspectorate of all appeals relating to Traveller and Gypsy sites in the five years to mid-May 2014. From that information, Ms Grigson was able to identify that 33 appeals involving Gypsy and Traveller sites in the Green Belt were determined by the Secretary of State on or after 1 July 2013. In two appeals, the Secretary of State allowed the appeal and granted permanent planning permission for Gypsy and Traveller Sites. In three appeals, the Defendant granted temporary planning permission for such a site. There may be issues in relation to the statistical robustness of these figures, given they involve a limited number of appeals over a short period of time. The figures, however, do not support the initial contention that in no case has the Defendant granted planning permission for a Gypsy or Traveller site in the Green Belt since the 1 July 2013. He has done so in five of the 33 appeals which he has determined.

Next, Mr Masters sought to interpret the limited statistics as indicating that the Secretary of State routinely reached decisions that were less favourable on appeal than inspectors. The limited statistics can be interpreted in different ways. In fact, in 17 of the 33 appeals, the inspector recommended dismissal of the appeal and the Secretary of State agreed. In two cases, the inspector recommended allowing the appeal and granting permanent permission and the Secretary of State agreed that the appeals should be allowed (albeit in one case for 5 pitches instead of 7). In three appeals, the inspector recommended allowing the appeal and granting temporary permission and the Secretary of State agreed that the appeal should be allowed albeit granting temporary permission for a shorter period than that recommended. In two other appeals, the inspector recommended allowing the appeal and granting permanent permission and in the remaining 9 the inspector recommended allowing the appeal and granting temporary permission. In these 11 out of the 33 appeals, the Secretary of State disagreed with the inspector.

In my judgment, it is not possible to derive from these statistics any evidence, still less any firm evidence, that there is differential treatment in the outcome of appeals in relation to Gypsy and Traveller sites in the Green Belt as compared with non-Gypsy and Traveller appeals. First, and foremost, there is simply no evidence as to the position in relation to non-Gypsy and Traveller appeals in the Green Belt. There is no information as to how many such appeals there were (pre or post 1 July 2013). There is no information as to what the outcome of those appeals were (again pre or post 1 July 2013). There is simply no evidence available in these proceedings, therefore, enabling a comparison to be made of the position in relation to Gypsy and Traveller appeals and non-Gypsy and Traveller appeals in Green Belt sites. Even if a statistical comparison could be made, careful consideration would need to be given as to the reasons for any apparent different treatment to determine whether or not it was justified. That stage, however, is not even reached in the present case. No evidence has been produced in this case that there is any differential treatment in terms of the outcome of Gypsy and Travellers appeals in Green Belt cases as compared with non-Gypsy and Traveller appeals.

Furthermore, it should be noted that the statistical information produced in this case does not itself even enable the inference to be drawn that Gypsies and Travellers in Green Belt cases are obtaining permission in fewer cases following 1 July 2013 than they did before. The appeals would have been in two groups. Those appeals involving significant development (3 pitches or 6 caravans or more) would have been determined by the Secretary of State prior to 1 July 2013. Those involving fewer pitches or caravans would have been likely to have been determined by an inspector. There is no evidence before this court as to the number of cases in which inspectors, prior to 1 July 2013, were allowing appeals and granting either permanent or temporary planning permission for a Gypsy or Traveller site in the Green Belt. There is no statistical evidence to determine if there has been a significant change in the outcomes of appeals and the grant of planning permissions since 1 July 2013. Mr Masters adduced evidence from three individuals who had experience with appeals in Gypsies and Travellers’ cases. Those three witnesses offered their own personal views, based on their limited experience, without adducing any appropriate data or information to support their personal views. Their witness statements were not of assistance in dealing with this case. However, even assuming that there has been a change in the proportion of Gypsy and Traveller appeals in Green Belt cases succeeding in obtaining some form of planning permission on appeal post 1 July 2013, that still does not enable any form of comparison to be made with the position in relation to non-Gypsy and Traveller appeals in such cases.

As stated, cases must be determined on the evidence available. In my judgment, the evidence produced in these cases does not establish any differential treatment in terms of the decisions on appeals by Travellers and Gypsies in relation to sites in the Green Belt as compared with non-Gypsy and Traveller appeals in such cases.

Mr Masters final point on this aspect of the case was that paragraph 25 of the Traveller Sites Policy provides that the fact that a local planning authority cannot deliver a five-year supply of sites is a significant factor when considering applications for temporary planning permission whereas, in relation to conventional housing, the lack of a five-year supply is a factor favouring permanent planning permission.

There are a number of difficulties with Mr Masters’ submission. First, and foremost, it is clear from the decision letter in all five cases that the Defendant did treat the fact that there was an unmet need and the absence of a five year supply of deliverable sites as a significant material consideration in favour of each of the five appeals both so far as permanent and temporary planning permission was concerned. However, the issue was the overall balance of factors including the unmet need and the absence of a five year supply of sites. There was no discriminatory failure to have regard to the absence of a five year supply of Gypsies and Traveller sites.

Furthermore, and more generally, I doubt whether it is correct to treat paragraph 25 of the Traveller Site Policy as evidencing unjustified differential treatment against Gypsies and Travellers in the way advanced by Mr Masters. Paragraph 25, as is clear from paragraph 28, contains a transitional policy which only applied to applications for planning permission made in the first 12 months after the Travellers Site Policy was adopted. The paragraph complained of did not, strictly, apply to the contested decisions. Secondly, I do not consider that the policy did discriminate in the way alleged. The policy in paragraph 25 appears to have been based on the view that, at least in the period after the introduction of the Travellers Site Policy, it should be made clear that the absence of a five year supply of sites was a significant material consideration when considering applications for the grant of temporary planning permission, presumably to give Travellers and Gypsies time to find alternative sites. In either event, paragraph 25 is, strictly, inapplicable (although the paragraph is still referred to in a number of the decisions). The position in relation to both Traveller and Gypsy sites and conventional housing in the Green Belt will, strictly, be the same. In both cases, the development will be inappropriate development. In both cases, local authorities should identify a five year supply of sites or land (see paragraph 9 of the Traveller Sites Policy and paragraph 47 of the Framework). If, as is likely, the absence of a five-year supply is seen as a material consideration in favour of granting planning permission, that has to be considered against the fact that the development would be in the Green Belt and there needs to be very special circumstances before it is approved. The ministerial announcement is to the effect that unmet need in both Traveller and Gypsy cases, and in conventional housing cases, is unlikely to be sufficient of itself to justify the grant of planning permission. The present position (notwithstanding the reference to paragraph 25 of the Travellers Site Policy in decision letters) is, therefore, materially the same in respect of both Traveller and Gypsy sites and conventional housing. In any event, in the present cases, there was no differential treatment as the Defendant did consider the absence of a five year supply of sites as a material consideration.

The five Claimants all contend that the decisions in their cases to dismiss the appeal and refuse permanent or at least temporary planning permission are unlawful. In addition, the Claimants contend that there are individual errors or flaws in their respective decisions. Furthermore, all five Claimants contend that the Defendant had failed properly to assess the personal circumstances of the claimant and his or her family and contend that refusal of permanent, or at least temporary planning permission would involve a breach of Article 8 ECHR.

The principles governing challenges to planning decisions are well-established and set out in the decision in Seddon Properties Ltd. v Secretary of State for the Environment (1978) 42 P & C.R. 26. In particular, it is important to bear in mind that the courts determine whether or not, as a matter of law, a consideration is material and whether the Secretary of State has addressed his mind to that consideration. The weight to be attributed to a particular material consideration is, subject to any relevant guidance, a matter of planning judgment for the decision-maker: see Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759 at paragraph 13. Further, allegations that a planning decision is perverse may be brought under sections 288 or 289 of the 1990 Act but they are not an opportunity for a review of the planning merits, as opposed to the lawfulness, of a decision: see R (Newsmith Stainless Steel Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin) 74 at para. 6.

In relation to the personal circumstances of the Claimant and his or her family and the claim that the decisions involved an infringement of their rights under Article 8 ECHR, that Article provides as follows:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

“2.

There shall be no inference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”

Matters relating to personal circumstances and rights derived from Article 8 ECHR are material considerations to be considered in accordance with section 70(2) of the 1990 Act when considering whether to grant planning permission. As such, a decision maker must take such matters into account. Furthermore, a public body cannot act incompatibly with a Convention right such as Article 8 ECHR. If the court concluded that a decision of the Defendant was incompatible with Article 8, then the decision would be unlawful.

The proper approach to dealing with these issues in the planning context is set out in the judgment of Hickinbottom J. in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin). The approach of a planning decision-maker is set out at paragraphs 47 to 68 and these principles are usefully summarised in paragraph 69 of that judgment in the following terms:

“i)

Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account.

“ii)

Where the article 8 rights are those of children, they must be seen in the context of article 3 of the UNCRC, which requires a child's best interests to be a primary consideration.

“iii)

This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with those of his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and properly represent and evidence the potential adverse impact of any decision upon that child's best interests.

“iv)

Once identified, although a primary consideration, the best interests of the child are not determinative of the planning issue. Nor does respect for the best interests of a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests of the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.

“v)

However, no other consideration must be regarded as more important or given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case. Further, the best interests of any child must be kept at the forefront of the decision-maker's mind as he examines all material considerations and performs the exercise of planning judgment on the basis of them; and, when considering any decision he might make (and, of course, the eventual decision he does make), he needs to assess whether the adverse impact of such a decision on the interests of the child is proportionate.

“vi)

Whether the decision-maker has properly performed this exercise is a question of substance, not form. However, if an inspector on an appeal sets out his reasoning with regard to any child's interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision-maker reached the decision that the adverse impact to the interests of the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact of the decision he has reached on the best interests of the child, and has concluded that that impact is in all the circumstances proportionate.”

Against that background, it is helpful to consider Mrs Lee’s challenge to the decision in her particular case as the grounds there raise a number of general issues.

Both the inspector and the Defendant considered that the proposed development was inappropriate development which would by definition cause harm to the Green Belt. Both considered that permanent planning permission should not be granted for the development. No challenge is made to that decision. Rather, Mrs Lee challenges the refusal to grant temporary planning permission. Mr Willers Q.C., on her behalf, advances a number of reasons why the refusal of temporary planning permission was unlawful.

First, ground 1 contends that the decision was irrational. It is sensible to consider the individual matters relied upon as part of ground 1 and then assess the consideration of the overall planning balance. Mr Willers submits that the level of harm arising from this particular development, other than by inappropriateness, was minimal and it was difficult to conceive of a Gypsy site in the Green Belt which would cause less harm. Hence, he submits it was irrational to refuse even temporary planning permission in the present case, given, particularly the unmet need for Gypsy and Traveller sites, the lack of a five year supply of sites and the personal circumstances of Mrs Lee and her family.

In my judgment, that approach to assessing harm does not properly reflect the policy framework. In summary, the essential characteristics of the Green Belt are its openness and permanence. Inappropriate development is, by definition, harmful as it damages the openness of the land in the Green Belt and that must be given substantial weight when considering the application for planning permission. Furthermore, the proposed development may cause additional harm by undermining one or more of the five purposes of the Green Belt. Paragraph 88 of the Framework provides that substantial weight should be given to the fact that the proposed development involves inappropriate development in the Green Belt and should only be approved in very special circumstances, that is, where the harm to openness caused by the inappropriate development, and any additional harm, is “clearly outweighed by other considerations”. That policy is expressly said to apply to Traveller and Gypsy sites (whether temporary or permanent): see paragraph 14 of the Traveller Sites Policy. As Green J. put the matter in Timmins v Gedling Borough Council [2014] EWHC (Admin.) 654 any development:

“harms openness quite irrespective of its impact in terms of its obstructiveness or its aesthetic attractions or qualities. A beautiful building is still an affront to openness, simply because it exists. The same applies to a building that is camouflaged or rendered unobtrusive by felicitous landscaping.”

In Mrs Lee’s case, the decision-maker was dealing only with the harm that arose from the impact on openness. In that context, the starting point was that the development, even on a temporary basis, would be inappropriate development. It would cause harm. It should not be approved save in very special circumstances.

The Defendant did not, therefore, err in law in taking the view that substantial weight should be attached to the harm to the Green Belt that even a temporary grant of planning permission would cause. That would still involve permitting inappropriate development which would harm the openness of the Green Belt.

Next, Mr Willers emphasises the unmet need for Gypsy and Traveller sites, and the lack of a five year supply of pitches, in the borough. The Defendant did expressly take that into account. He saw that as a material consideration and he considered it to be a significant factor in favour of allowing the appeal. The approach of the Defendant, however, is that unmet need alone is unlikely to justify the grant of planning permission in the Green Belt. There is nothing intrinsically unlawful about that approach. The difficulty is that there are two competing considerations. On the one hand there is the aim of preserving the Green Belt and the rights and interests of the wider public. On the other, there is the aim of respecting the Gypsy and Traveller way of life and ensuring that there are places where they may be able to pursue that lifestyle. Local planning authorities, for whatever reason, have not always provided sufficient sites and have not always ensured that there will be a sufficient supply of sites available for Gypsies and Travellers. They have not always complied with their statutory duties to assess need. That means that, as a matter of judgment, the decision-maker will have to weigh up the preservation of the Green Belt against the fact that local authorities may not be ensuring the availability of sufficient sites for Gypsies and Travellers. There is nothing intrinsically unlawful about an approach that says that, subject to other considerations, unmet need is unlikely of itself to justify development in the Green Belt. That involves a hard choice between two less than perfect situations: allowing inappropriate development in a limited, and environmentally important resource, or not resolving the immediate problems arising out of the fact that some local planning authorities have consistently failed to provide the necessary number of Gypsy and Traveller sites and have failed to have a sufficient 5 year supply of such sites for the future.

Mr Willers also submits that the way in which the Defendant dealt with the personal circumstances of Mrs Lee and her family, and the best interests of the children, together with the other considerations, further demonstrate that the decision to refuse temporary planning permission was irrational or perverse as an aspect of ground 1 of the claim. Grounds 5 and 6 also make specific complaints about the way in which the Defendant dealt with the refusal of temporary planning permission and the rights of Mrs Lee and her family under Article 8 ECHR. It is convenient to consider this aspect of ground 1, and grounds 5 and 6 together.

Mr Willers submitted that the best interests of the child are a primary consideration and no other consideration could be given inherently more weight than that consideration. He submitted that the decision letter attributed “significant weight” to the best interests of the children. The harm to the Green Belt was given substantial weight. Mr Willers therefore submitted that the Defendant had erred in his approach or alternatively failed to give adequate reasons for his conclusion.

Dealing first with the facts, Mrs Lee’s position is that she wished the site to be available for her daughter and son-in-law and their two young children and their baby. Mrs Lee’s daughter has medical needs and there would be an adverse effect on her health if she could not see her current doctor. The children’s continuing education would be adversely affected. Mrs Lee lives in a house and her daughter did until, it seems, she married. Mrs Lee’s son-in-law who is also a Romany Gypsy, has always lived in a caravan as part of his traditional lifestyle and has an aversion to bricks and mortar. The family would be likely to have to move to another unauthorised campsite if the appeal was dismissed to the detriment of the daughter’s health and the children’s education.

The Defendant first identified and dealt with the material considerations relevant to this aspect of the appeal. In particular he referred to the interests of the children as a primary consideration. He considered that they carried “significant weight” in favour of allowing the appeal. In my judgment, the approach of the Defendant accords with the approach set out in Stevens. He sought to identify what the best interests of the children were. At the stage of identifying the material considerations and assessing their importance or significance individually, the Defendant recognised that the best interests of the children were a primary consideration and they must have significant weight when it came to considering those considerations against other considerations. He recognised, too, that policy guidance required him to treat the harm to the Green Belt as a material consideration to which substantial weight had to be given. That reflects the words used in the policy. The different forms of expression – significant weight as a primary consideration and substantial weight - do not, in my judgment, indicate that the Defendant treated at this stage, the best interests of the children as in some way having intrinsically less weight than any other consideration such as the protection of the Green Belt. Rather, he was identifying, correctly, the considerations and the importance of each.

At the next stage, the Defendant had to assess the overall balance and reach a conclusion given these competing considerations. His decision was that the best interests of the children, the personal circumstances of the family, the unmet need and the lack of five year supply were not sufficient, collectively, to outweigh the harm to the Green Belt. Leaving to one side the question of compatibility with Article 8 ECHR, that is an acceptable approach to the purely domestic law issue of considering all material considerations, including the interests of the children as a primary consideration, and deciding whether all the matters that pointed in favour of an appeal did justify the grant of temporary planning permission in the Green Belt. It cannot be said as a matter of purely domestic planning law that the judgment that the Defendant reached was irrational or unlawful. Nor were the reasons inadequate or unclear.

In addition, the court needs, itself, to consider whether the decision to refuse planning permission was compatible with Article 8 ECHR. In my judgment, the decision is compatible with Article 8 ECHR. Mrs Lee and her family are entitled to respect for their private and family life and their home. Any interference with those rights would need to pursue a legitimate aim and be proportionate. I bear in mind the decisions of the European Court of Human Rights in this area, including Chapman v United Kingdom (2001) 33 EHRR 399. There is a legitimate aim here namely the protection of the rights of others in terms of environmental protection (see Chapman at paragraph 103). In terms of proportionality, that aim has, in my judgment, a very high value in the present case involving as it does inappropriate development which is harmful to the Green Belt. That is an area earmarked for particular environmental protection to safeguard its openness on a permanent basis. The boundaries of the Green Belt have been developed and carefully identified over time. Further, the caravan was sited on the land without any planning permission and its presence there is unlawful. That is a factor which is also relevant in assessing the proportionality of the interference: see Chapman at paragraph 102.

Against that, there is the impact on Mrs Lee and her family. There is the impact on their traditional way of life. There is the impact on the children which is a primary consideration. There is the impact on Mrs Lee’s daughter. There is the fact that there is unlikely to be an alternative, suitable Gypsy site available for them. In assessing proportionality, therefore, I bear in mind that the effect on the family of refusing temporary planning permission will be that they are likely to have to move to another unauthorised site. In all the circumstances, of this case, however, the decision not to grant planning permission purses a legitimate, and highly important aim, and is proportionate to that aim. The decision in relation to Mrs Lee and her family is, in my judgment, compatible with Article 8 ECHR.

Ground 1, included, and Ground 3 alleged that there was a particular error in the Defendant’s reasoning. The submission is that the inspector had not found that the development caused any harm to the character or the appearance whereas the Defendant thought he had and gave that harm some additional weight. In my judgment, the inspector was finding at paragraph 16 of his report that some trees (albeit not protected ones) had been removed at the development site but that only resulted in limited harm to the overall character and appearance of the area. The inspector confirmed that at paragraph 35 of his report and gave that harm limited weight. The Defendant correctly noted this fact in paragraph 12 of his decision letter which refers expressly to paragraph 35 of the inspector’s report. There was no error in this respect on the part of the Defendant.

Ground 4 concerns the ministerial announcement of 1 July 2013. Mr Willers, on behalf of Mrs Lee, made it clear that he was not seeking to challenge the ministerial announcement, or the direction in Mrs Lee’s case that the appeal be determined by the Secretary of State. Rather, he submitted that the alleged difference in treatment between Romany Gypsies such as Mrs Lee, and non-Gypsies seeking conventional housing, entitles the court to infer that the Defendant is more inclined to refuse appeals in cases involving Gypsy and Traveller cases than non-Gypsy and Traveller cases. For the reasons given above in relation to the other Claimants’ challenge on this issue, there is no basis for drawing such an inference on the evidence in this case.

For completeness, I note that I have carefully considered all the points made by Mr Willers in the grounds of claim, his skeleton argument, and in oral submission. I have considered carefully all the material, and case law, drawn to my attention. That includes, amongst others, the decision in Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ. 692. It also includes the decision of the High Court and the Court of Appeal in Moore v Secretary of State for Communities and Local Government [2013] EWCA Civ 1194 on which great reliance was placed. That decision turns on the facts of that case, as Richards L.J. notes in paragraph 1 of his judgment where he says that the issues in that appeal were fact-specific rather than of wider importance. The Defendant did not make the error in Mrs Lee’s case, or the cases of the other claimants, that the courts identified in Moore.

For these reasons, Grounds 1, 3, 4, 5 and 6 are not established. Ground 2 was abandoned at the hearing. For those reasons, the Defendant’s decision to dismiss Mrs Lee’s appeal and to refuse temporary planning permission is lawful. It was a decision that he was entitled to reach under the law.

Mr Masters takes a number of points on behalf of these four Claimants. The first points concern alleged irrationality or perversity in the decisions. The matters said to evidence this perversity are these:

In my judgment, these submissions mischaracterise the decisions taken and fail adequately to describe the overall balancing exercise undertaken in these cases. This judgment explains above why a decision-maker is to regard temporary permission as harming the Green Belt and why the decision-maker is entitled to take the view that unmet need was not, of itself, likely to be sufficient to justify allowing an appeal and granting planning permission. The Defendant did not accept that there were breaches of Article 8 ECHR (or Article 14). Rather the Defendant found that there would be interference with the right to respect for private and family life within the meaning of Article 8(1) ECHR (and took that into account) but considered that the interference pursued a legitimate aim and was proportionate and so was justified under Article 8(2) ECHR: see paragraphs 23 of the decision letter in Mr Edward Connors’ appeal, paragraph 29 in Mr Miley Connors’ appeal, paragraph 21 in Mrs Doran’s appeal and paragraph 31 in Mr Sines’ appeal. In other words, the Defendant did not treat these breaches as being outweighed by other matters: he considered that there were no breaches of Article 8 as any interference was justified under Article 8(2) ECHR.

At the first stage of the exercise, the Defendant did identify the best interests of the children as a primary consideration: see, for example, paragraph 15 of the decision on Mr Edward Connors’ appeal, paragraph 21 in Mr Miley Connors’ appeal, paragraph 21 of Mrs Doran’s appeal and paragraph 21 of Mr Sines’ appeal. The Defendant identified what the best interests of the relevant children required. Thereafter, at the second stage, the Defendant considered the balance of the competing considerations in the way described above in relation to Mrs Lee and in accordance with the approach in Stevens. None of the alleged errors in fact occurred.

Mr Masters also submitted in relation to Mr Edward Connors, Mr Miley Connors and Mr Sines, the Defendant failed to have regard to the fact that any new Traveller or Gypsy site would be likely to be in the Green Belt. Large parts of the two boroughs in question were comprised of Green Belt (70% in the case of Reigate and Banstead and 83% in the case of Windsor & Maidenhead). First, the Defendant was aware of these matters. The inspector’s report in each of the three cases drew attention to it. Secondly, the fact that the Defendant did not consider this a reason to allow the appeal is not irrational or perverse. Green Belt boundaries have been established over time. There are paragraphs in the Framework dealing with how extensions of the Green Belt ought to be dealt with. Even if any new sites were to be established in the Green Belt, they would be established in appropriate locations, identified following the approach set out in the Framework, and through the mechanism of the local plan process with the opportunities for full consideration of appropriate boundaries and public involvement that that involves. Thirdly, paragraph 15 of the Traveller Sites Policy set out above provides that the Green Belt should only be altered in exceptional circumstances and then through the plan-making process not in response to an application for planning permission. There was therefore nothing irrational to refuse an appeal in relation to an application for planning permission by one (or more) appellants because other sites might emerge over time and they might be situated in an area of the Green Belt (although not necessarily, of course, the area where the appeal site is situated).

In relation to Mr Miley Connors, Mr Masters took two specific points on the decision letter on his appeal. First, he submitted that the Defendant erred in considering that the proposed development would encroach upon the countryside and so undermine one of the five policies underlying the Green Belt. The inspector, he submitted, found that there would be an intensification of use of the area but not an expansion of the boundaries. To encroach is to intrude. Encroachment may involve an extension of boundaries so a proposed development would physically extend into the countryside. It may also involve a greater intensification (for example, in size, number or the use) of a particular area which intrudes more on the countryside. The Defendant did not err in concluding that the stationing of three mobile homes would lead to a moderate degree of harm to the purpose of safeguarding the countryside from encroachment.

Finally, in relation to each of the four Claimants that he represents, Mr Masters submits, in essence, that the decision of the Defendant in relation to Article 8 ECHR is wrong. In my judgment, the Defendant approached the question of Article 8 in the correct way in each of the cases. He considered the personal circumstances of each Claimant and his or her family. He considered the best interests of the child as a primary consideration. He was aware that, to differing extents, the decisions would involve an interference with the rights under Article 8(1) ECHR of each of the Claimants but he considered that the interference pursued a legitimate aim, was proportionate and struck a fair balance.

In my judgment, the decision in the case of each of the Claimants was compatible with Article 8 ECHR. Any interference with the rights of each of these Claimants and their families would need to pursue a legitimate aim. In each of these cases, that of Mr Edward Connors, Mr Miley Connors, Mrs Doran and Mr Sines, and their families, the decisions dismissing their appeals and refusing planning permission does pursue a legitimate aim, protecting the environment in the form of the Green Belt and thereby protecting the rights of the wider community in terms of environmental protection (see Chapman at paragraph 103). In terms of proportionality, that aim has, in my judgment, a very high value in the present case involving, as it does, development in the Green Belt. That is an area earmarked for particular environmental protection to safeguard its openness on a permanent basis. The boundaries have been developed and carefully identified over time. Further, none of the sites has planning permission and the stationing of any caravans on the land is at present unlawful. That is a factor which is also relevant in assessing the proportionality of the interference: see Chapman at paragraph 102.

The decisions correctly identify the impact upon each of the Claimants and his or her family. The circumstances of each family is different. Where children were involved, the decision letter identifies, from the evidence provided, what is in their best interests. The best interests of a child are a primary consideration in conducting the exercise of deciding if any interference with the rights recognised by Article 8 ECHR is proportionate.

In Mr Sines’ case, he does not live on the site and it is not proposed that he would. The proposal is that there would be five pitches on the site which would be occupied in future by members of his extended family. They do not live at the site at present. One of the occupants would be one of Mr Sines’ daughter who was shortly to be married and wanted a home of her own. Other occupants would be another daughter and her three children and a sister-in-law and her two sons (one of whom was also about to marry and wanted a home of his own). There was some suggestion at the inquiry that one of the proposed occupiers, Mr Sines’ brother-in-law might have stayed on the site but the application for planning permission stated that the change of use had not started and the site was vacant. Neither Mr Sines nor any of the proposed occupants attended the inquiry to give evidence. They did not contend that refusal of the appeal would have any specific adverse impact on them by reason of their personal circumstance. They did rely on the fact that they were Romany Gypsies whose traditional way of life involved living in an extended family

In the case of Mr Edward Connors, he lives in a house to the south of the site. It not proposed that he would live on the site. Rather, he will remain in his existing home and it is proposed that his extended family would occupy four of the pitches and two further pitches would provide accommodation in the future for children when they grew up. There would be four sets of occupants, three families with young children, and one adult. The evidence is that some of the family already spend some time living on the site, although there is no planning permission for the use of the site for the stationing of caravans. They also travel in England and Norway. The dismissal of the appeal is likely to mean that the families will continue their itinerant lifestyle and will lack a permanent base. The lack of a permanent site would not be in the best interests of the children. If they had a primary site, that could facilitate access to education in future (none of the children is, at present, it appears, attending school).

In the case of Mr Miley Connors, the site would provide accommodation for three families. As is apparent from the inspector’s report, the families did not provide much evidence of the impact of a refusal of planning permission on their appeal. One of the three families, Mr Eddie Connor, has health problems but he is currently living in a flat next to his mother, not on the site. There is nothing to suggest that the refusal of planning permission for a caravan would prevent him from continuing to live in his present flat. The evidence is that the impact on Eddie Connors will, therefore, be the fact that he will not be able to move to the site to live with his extended family. One couple, who have no children, have no permanent site on which to live. They spend some time travelling in Ireland and England. The impact on them will primarily be that they will not have a permanent site. One couple, Patrick and Ann Deleney, have children but one is aged 19 and is an adult. The other child is aged 14. That child will be of school age, although there is no detail given about schooling, and there must be a risk that not having a permanent site, with settled accommodation, would detrimentally affect her education. There is no evidence of any other actual or likely specific adverse affect on the child.

In the case of Mrs Doran, she bought the site but did not have planning permission to station caravans on it. Despite that, she and her family have in fact occupied the site and lived there since 2007. For two years (between some time in 2010 and April 2012), she had a temporary planning permission to use the site with a view to her seeking an alternative site. The family includes her daughter and three grandchildren who are in school. The evidence is that access to local doctors, and in particular, education, would be made more difficult if the family could not continue to reside on the site. At the time of the decision, Mrs Doran’s husband was alive but in deteriorating health and, sadly, has since died. The impact on the family would be that they would lose the place where they have in fact lived for about seven years. However, the fact is that they never had permanent planning permission to place caravans on this part of the Green Belt although it is right to note that they did have temporary planning permission for two years. The evidence is that there are no other alternative Traveller sites available.

Given the importance of the legitimate aim and the need to strike a fair balance between the rights of the individual Claimant and his or her family members (including those Claimants where the best interests of children are involved and which are a primary consideration) and the wider community, I am satisfied that in all these cases the dismissal of the appeals and the refusal of planning permission was a proportionate means of pursuing a legitimate aim. The decisions are compatible with the Article 8 rights of Mr Edward Connors, Mr Miley Connors, Mrs Doran, Mr Sines and their families.

Mr Masters also submitted that the decisions also involved breaches of the public sector duty in the Equality Act 2010. However, the decision letter in relation to the four Claimants he represents expressly addressed this issue (Mr Willers does not raise it as a ground in relation to the fifth Claimant, Mrs Lee). It is clear from those decision letters that the Defendant did have due regard to the matter referred to in that duty, including in particular, the need to eliminate discrimination, advance equality and foster good relations. He concluded that any impact on the Claimants by reason of their protected characteristics was justified and proportionate. There was no breach of the public sector equality duty.

Mr Masters made a number of other submissions. Many of these were putting in different form points already made. Others did not, on analysis, demonstrate any flaw in the decision-making process such as would lead to the quashing of any of the decisions under challenge. It would lengthen an already long judgment to deal with each and every additional point made. I have considered all the material and all the case law upon which Mr Masters relies.

On the evidence before this court, the Claimants have not established that the decisions to dismiss the appeals and refuse planning permission involved any differential treatment on the grounds that they are Irish Travellers or Romany Gypsies. The decisions in each case were lawful, rational decisions which were compatible with their rights under Article 8 ECHR. The applications under section 288 of the 1990 Act to quash the decisions are therefore refused.

The applications for permission to appeal under section 289 against the decisions of 5 March 2014, in the case of Mrs Doran, and 18 February 2014 in the case of Mrs Lee, dismissing the appeal against the enforcement notice in their cases are arguable and permission to appeal against those decisions is granted. However, the appeals themselves have not established any error of law on the part of the decision-maker and are dismissed. If and in so far as Mrs Doran was seeking permission to appeal against the direction of 16 August 2013 that her appeal be determined by the Secretary of State, permission to appeal against that decision is refused. Challenges to the ministerial announcement cannot be challenged by way of an application under section 288 or an appeal under section 289 of the 1990 Act.

For those reasons these applications and appeals are dismissed.