DONCASTER METROPOLITAN BOROUGH COUNCIL v SECRETARY OF STATE FOR THE ENVIRONMENT. TRANSPORT AND THE REGIONS [2002] EWHC 808 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
[2002] EWHC 808 (Admin)Case No Case No. CO/3337/2001Venue Royal Courts of Justice, The Strand, London WC2
Between
DONCASTER METROPOLITAN BOROUGH COUNCILSECRETARY OF STATE FOR THE ENVIRONMENT. TRANSPORT AND THE REGIONS
Before
Mr Justice SullivanMR T HILL (instructed by SHARPE PRITCHARD SOLICITORS, LONDON WC1V 6HG) appeared on behalf of the Claimant.MR J LITTON (instructed by THE TREASURY SOLICITOR) appeared on behalf of the Defendant.Date 10 April 2002
[1]MR JUSTICE SULLIVAN: This is a challenge to three decisions by a planning inspector contained in a decision letter dated 20th July 2001. Following an informal hearing held on 30th May, the Inspector allowed three appeals made by the second defendant against decisions of the claimant to issue two enforcement notices, notices A and B, and to refuse to grant planning permission. The breach of planning control alleged in enforcement notice A was the unauthorised change of use from agricultural to a joint use of agricultural and residential. Enforcement notice B alleged the unauthorised construction of a septic tank and the laying of hard core for domestic use. The development proposed in the application for planning permission was the retention of a mobile home, a relocatable building, a septic tank and hard core access road.[2]The appeals site is in the Green Belt. In November 1993 planning permission was refused for the erection of a bungalow on Green Belt grounds and in 1999 the second defendant's application for permission to erect a stable block, hay store and tack room on the site was also refused on, inter alia, Green Belt grounds.[3]The planning application, the subject of these proceedings, was submitted retrospectively on 2nd August 2000. It was refused, again on Green Belt grounds, on 7th November 2000 and on 10th January 2001 enforcement notices A and B were issued by the claimant. All three appeals were heard together at the informal hearing on 30th May. In his decision letter dated 20th July 2001 the Inspector allowed all the appeals, subject to conditions. Paragraph 21 of the decision letter dealt with enforcement notice A, allowed the appeal, directed that the enforcement notice be quashed and granted planning permission on the deemed application. Planning permission was granted subject to a number of conditions:
"1) The residential use hereby permitted shall be carried only by Steven Smyth and his dependants and shall be a limited period, being the period during which the site is occupied by Steven Smyth and his dependants."
[4]Paragraph 22 of the decision letter dealt with enforcement notice B. Again the appeal was allowed, the enforcement notice quashed and planning permission granted for the development the subject of that notice.[5]The section 78 appeal was dealt with in paragraph 23 of the decision letter. The appeal was allowed and planning permission granted for the retention of a mobile home, relocatable building, septic tank and hard core access road, subject to, inter alia, condition (1) which had been imposed in respect of enforcement notice A.[6]Any challenge to the Inspector's decision to allow the section 78 appeal had to be made by way of an application under section 288 of the Town and Country Planning Act 1990 within six weeks (see section 288(3)). By virtue of section 289(6) permission had to be obtained from this court to appeal against the Inspector's decisions to quash enforcement notices A and B. Such an application has to be made within four weeks, but the court has power to extend that period under the rules. An application for permission to appeal under section 289 was made on 20th or 21st August, a day after the expiration of the four-week period under section 289.[7]On 30th November 2001 Collins J granted the necessary extension of time and gave permission to the claimant to appeal under section 289. Notice of appeal under section 289 was served on 4th December.[8]By an oversight no separate application was made under section 288 of the Act. The Secretary of State did not take the point and both parties proceeded on the basis that the claimant's challenge was being made under section 289. A challenge under section 289 alone would have been otiose because that would have left the planning permission granted under the section 78 appeal unaffected.[9]When I raised this matter at the outset of the hearing, Mr Hill, on behalf of the claimant, sought leave to amend the Part 8 claim form so as to include an application under section 288 in addition to the application for permission to appeal under section 289. He pointed out that the Part 8 claim form had been served on the relevant parties, albeit one day after the four-week period for the purposes of section 289, within the six-week period for the purposes of section 288. Although the form refers on its face to section 289, and does not expressly refer to section 288, it is clear from the grounds that all three decisions were being challenged, "three grants of conditional planning permission".[10]The decision letter dealt with the planning merits of enforcement notice A, and the section 88 appeal together. No separate issues arose on the section 78 appeal. The decision in respect of enforcement notice B followed on from the decisions in respect of enforcement notice A and the section 78 appeal. In substance, therefore, the decision letter treated the three appeals as a single composite development and the grounds of challenge applied with equal force to the decisions in respect of all three appeals. Failure to mention section 288 was a mere oversight which the court could and should deal with by way of permitting an amendment.[11]He referred to the notes to section 289 in paragraph 289.03 of the Encyclopedia of Planning Law:
"(4) a decision by the Secretary of State to grant planning permission. Such a decision is within s. 284(3), and hence a matter which may be challenged only under s. 288... However, it has been held that the procedure under section [289] remains available in such cases, despite the fact that s. 288 is the more appropriate route and does not require permission of the Court ( Gill v Secretary of State for the Environment ...) Alternatively, although the permission of the court is required to amend the draft claim form once it has been served... the proper course, where the application had been made within the time allowed under s. 288 and where the proposed amendment did not add or substitute a new claim or seek new relief, would be for the court to allow the claim to proceed instead under s. 288: Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions , The Times, December 20, 2000 (Court of Appeal)."
[12]In the present case there is no question of substituting a new claim or seeking new relief and no prejudice has been suggested.[13]On behalf of the first defendant, Mr Litton opposed the proposed amendment, submitting that the Council had not intended to appeal under section 288. This was not a case of an intention to challenge a decision under one enactment, but the wrong form being used in error. Here there was no error. The Council intended to challenge under section 289 alone. This was demonstrated by the fact that when the application to extend time for appealing under section 289 was made, the claimant did not rely on the fact that there was a valid section 288 appeal which could be pursued in any event.[14]I am satisfied that the Council intended to challenge the decision letter as a whole and all three decisions contained within it. The essential reasoning adopted by the Inspector when justifying allowing the appeals against the enforcement notices and the appeal under section 78 is precisely the same. The grounds of challenge to that reasoning are also the same. A Part 8 claim form challenging the decisions to allow the three appeals was served within the six-week period. Although it did not, in terms, mention section 288, it was perfectly clear that the Council wished to challenge the decision letter as a whole and I am satisfied that the failure to mention section 288 was an oversight. Since no prejudice has been suggested, and since there is no separate issue on the section 78 appeal, I am satisfied that it would be right to accede to Mr Hill's application and allow an amendment to the Part 8 claim form. I will, therefore, consider the merits of both the section 288 application and the appeal under section 289. For the reasons that I have given, it is not necessary for present purposes to distinguish between the application and the appeal.[15]The Inspector described the site and surroundings in paragraph 1 of the decision letter:
"The appeal site is a square shaped piece of land on the east side of Hall Villa Lane and immediately south of an old railway line. It is surrounded by mature hedgerows. To the south is the curtilage of a large known as Adams Farm. At the time of my site visit the north-eastern corner of the site was occupied by the appellant's mobile home, a relocatable building used for toilet, washing and domestic storage and a touring caravan. The site lies a little to the north of the small village of Toll Bar."
[16]The Inspector dealt with the development plan in paragraph 2 of the decision letter, noting that the appeal site lay within the Green Belt. He referred to policy ENV3 of the plan which, "...states that within the green belt development will not be permitted, except in very special circumstances, unless it is for certain defined purposes. Policy PH21 identifies a number of gypsy caravan sites within the borough including one at Tilts Farm a few hundred meters north of the appeal site. Policy PH22 deals with the location of further gypsy caravan sites within the borough."[17]The Inspector goes on to say that policy PH22 that requires proposals for such sites to have particular regard to a number of considerations which he identifies.[18]The Inspector then dealt with the ground (a) appeal under notice A and the deemed application and the section 78 appeal (for the claimant's mobile home) saying in paragraph 3 under the heading "The main issue":
"It is not in dispute that the appellant is a gypsy or that a gypsy caravan site is inappropriate development within the green belt. What is in dispute, and what is the main issue, is whether there are in this case very special circumstances justifying inappropriate development within the green belt. In determining this issue I need to look at the effect of the residential use on the openness of the green belt, the need for gypsy caravan sites in the locality and the effect of a refusal on the home and family life of the appellant and his family and in particular on the education of his children."
[19]He dealt in turn with those matters, starting with the "Effect on openness", saying in paragraph 5:
"All the site can be clearly seen from Hall Villa Lane as it rises to pass over the old railway line immediately to the north of the site. From this vantage the structures and vehicles detract from the openness of the green belt on what was formerly an open field. But from other vantages the site is relatively unobtrusive being surrounded by hedgerows substantial enough to screen or nearly screen the impact of the structures even in the winter months. 6. The main purpose of the green belt in this area is to prevent the encroachment of the urban area onto the countryside. The use of the site for residential purposes would be seen, from the adjoining part of Hall Villa Lane, as extending the village into the countryside. The relatively unobtrusive location limits but does not eliminate the harm to the openness of the green belt and to its purpose in this area caused by the residential use."
[20]Turning to the question of need, he said in paragraphs 7 and 8:
"7. The appeal site lies within the Bentley Ward of the Council. Gypsy caravan counts are made by the Council's Gypsy Liaison Officer every month. These counts made over the last 14 months (April 2000-May 2001) show authorised caravans ranging from 30-46 within the ward and unauthorised caravans (none of them roadside caravans) from 15-17. There is a private authorised gypsy caravan site a few hundred metres north of the appeal site at Tilts Farm. This has a capacity for 40 caravans. Monthly figures over the last year or so show occupancy ranging from 10-23 caravans. When I visited the site there were plenty of spaces available. The figures tend to show a sufficiency of caravan spaces within Bentley Ward in numerical terms but a consistent number of caravans (some 15 or so) on unauthorised sites. 8. The appellant made it plain at the hearing that he would not take his family to the nearby site at Tilts Farm or any other larger site, whether privately or Council owned, occupied by other families. He told me that he himself had been brought up on such sites. He said that those living there were subject to violence, living in close proximity with other families who might be of bad character. He said that large caravan sites were often the scene of drug dealing and other anti-sociable behaviour. The nearby site at Tilts Farm, he told me, had been the scene of a violent clash over the Christmas period involving travellers from the Bradford area. He was not prepared to expose his family to this kind of environment. He wanted a site of his own where his family could be brought up in peace and security."
[21]Under the subheading "Schooling" the Inspector said this in paragraphs 9 to 11:
"9. The appellant and his wife have two children Steven and Luna Marie. Steven is six years old and has been at school nearly two years. He attends primary school in Toll Bar half a mile away. He is a bright boy, has adapted well to school and is among the best achievers in his class. He takes a full part in school activities. Luna Marie is approaching her fifth birthday. She has been attending a pre-school playgroup for some time. She is not so adaptable as her brother, I am told, and may find it more difficult to cope with changes in schooling. If the family had to resume an itinerant way of life the children's education would be seriously interrupted. 10. The appellant submitted a decision letter of the Secretary of State and an Inspector's report concerning a gypsy caravan appeal in North Benfleet. In that appeal the Secretary of State took a different view to the Inspector as to the weight to be given in that case to the circumstances of the gypsy families. In particular the Secretary of State considered the need of the children for the continuity of education to be a factor of great importance and attached significant weight to it in coming to a balanced decision on the various considerations. 11. At the hearing we discussed what weight I should give to the decision by the Secretary of State in the North Benfleet case. I accept Mr Lawson's [the claimant's solicitor] suggestion that the decisions by the Secretary of State are of persuasive, not binding, force on his Inspectors. In this case, following the Secretary of State, I attach great importance to the continuity of education for the appellant's children."
[22]Under the heading "Overall Conclusion" the Inspector said this:
"12. The gypsy caravan site on the appeal site is not appropriate development within the green belt. This in itself causes harm to the green belt. Further harm is caused by the impact (albeit limited) on the openness of the green belt and on the countryside. 13. As to the needs of the appellant's children for continuity of education, there is an authorised gypsy caravan site nearby. Should not the appellant move there with his family and thus avoid any disruption to the children's education? I bear in mind the appellant's evidence (which I accept) about the trouble at the site over Christmas and the difficulties the appellant foresees in living there with other families. But the appellant is not simply saying that the site at Tilts Farm is unsuitable. He is ruling out any other site that would have to be shared with other families. Should the appellant's desire to have a site for his own family outweigh the need to maintain the openness of the green belt? 14. The Council argues that it should not. They recognise that there may be difficulties for the appellant and his family at Tilts Farm that would not be encountered at the appeal site. They point out however that problems of violence and drug abuse are not confined to gypsy caravan sites. Such problems are a feature of modern life and occur, they say, in many places even in small villages. It is not reasonable, they argue, to allow an exception to green belt policies for reasons such as this. No permanent dwelling would be allowed within the green belt on this basis. 15. It seems to me however that the life in the open that is traditional to gypsies leads more readily to conflict with other families sharing a confined area. The problems of sharing a site can therefore be more acute than those of families living in the same street in conventional housing. Following the Secretary of State, I attach great importance to continuity of education for the appellant's children. It would be unrealistic however to expect this to happen if the children had to move their home to a hostile environment or if, as is more likely in this case, the family took to the road. Continuity of education depends as much on a secure and peaceful home life as on continued proximity to the same school. I have come to the conclusion that, on balance, the benefit to the appellant's family and particularly to the children of allowing the appeals outweigh the limited harm caused to the openness and purpose of the green belt."
[23]Applying the criteria of policy PH22, the Inspector's view was:
"Given my conclusion that the use accords with green belt policy the residential use scores highly in terms of Policy PH22."
[24]Having dealt with notice B, he said in paragraph 18:
"As the personal circumstances of the appellant and his family have been a decisive factor in my decisions I propose to make the permissions personal to the appellant so that only he and his immediate family can live there. This was the course adopted by the Secretary of State in the North Benfleet case and is preferable to a wider limitation allowing other gypsies to live there whose circumstances might be different."
[25]In paragraph 20 he said this:
"The approach I have adopted in weighing the personal circumstances of the appellant and his family is that taken by the Secretary of State in the North Benfleet case. I appreciate that the present case is distinguishable on its facts from the North Benfleet case in that other sites are available. I also appreciate that in decisions on Human Rights cases the European Court has paid particular attention to the availability of other sites. In this case however, for the reasons explained, the availability of other sites has not been decisive. I have taken into account all other matters raised with me including the efforts of the Council over a number of years to ensure adequate provision for gypsies in the Borough and particularly in Bentley Ward. None of these however alter the conclusion I have reached on the main issue."
[26]The claimant's written representations to the Inspector had included the following:
"The Appellant is a travelling Gypsy who needs to have a firm base in this area from which to travel. The appeal site was chosen because it is near to friends and relatives in the same lane and allows his children to attend school with the support of other travelling children who are related. This has greatly assisted in getting the two children to settle down and make real progress."
[27]In its written representations, the Council acknowledged:
"...the particular lifestyle of the appellant and the needs of his family, but [was] of the opinion that it is not essential to reside at the appeal site to satisfy these needs. ... The Council considers that there is adequate provision of authorised sites within the Borough to preclude the need for inappropriate encroachment into the Green Belt."
[28]It is helpful at this stage to set out paragraphs3.1 and3.2 of PPG2 Green Belts. They deal with the presumption against inappropriate development in the following terms: 3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. 3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."[29]Against this background, Mr Hill submits that this case raises a point of particular importance, not merely for the claimant but for other local planning authorities having responsibility for protecting Green Belts. When may the presumption against inappropriate development in the Green Belt be overridden by the personal circumstances of individual gypsy families? In the present case there were pitches available in an authorised site just up the road. The Council challenges the decision on three grounds. Firstly, the Inspector failed to consider the reasonableness of the second defendant's refusal to go to that nearby site, or indeed any other site. The appellant was, effectively, holding a gun to the head of the Inspector threatening to disrupt his children's education by returning to the road unless he succeeded in obtaining his own private site within the Green Belt and refusing to contemplate a "base from which to travel" either on the nearby site, which had vacant pitches, or on any other site whether public or private. The Inspector simply gave way to that threat without any consideration of the implications of so doing in terms of the policy framework both for Green Belt protection and for the provision of gypsy sites in development plans.[30]The Inspector made no attempt to explain why the problems of the nearby site were considered to be so significant as to warrant an exceptional course. The problems were described largely in anecdotal terms. There was no evidence that they were any different from the conditions experienced on countless inner city housing estates. There was, in any event, no suggestion that they applied to every authorised gypsy site, but it was the appellant's case that he would not go to any such site.[31]No attempt had been made in the decision letter to address the striking inconsistency between the appellant's professed desire to be near to and gain support from the adjacent gypsy community to which he had referred in his written representations (see above) and his adamant opposition to the suggestion that he should live on the same site as that community. Similarly, there was an inconsistency between his opposition to living on that nearby site by virtue of the criminal activities allegedly taking place there, and his willingness to live just down the lane which would be well within the sphere of influence of the site.[32]Allied to this ground was the second ground which was that the Inspector had failed to consider the consequences of the precedent that would be set by this decision. It was submitted that the Inspector's decision had the potential, if it was followed by other inspectors, to strike at the heart of policies for the provision of sites for the gypsy population in a plan-led way. There were, on the face of it, no special or unusual circumstances here. It was not in the least unusual for families to have two children, nor for them to express the wish to have their own plot of land whereon they could establish their own home.[33]The argument which succeeded at this appeal could be repeated at any other number of appeals and if coupled with a point-blank refusal by a gypsy family to utilise vacant pitches at any authorised gypsy site could be deployed as to secure the release of any number of individual private sites within the Green Belt. Given the need for consistency between decisions, it was difficult to see how future inspectors could insist on a different result when faced with similar arguments. There could thus be a proliferation of private sites in the countryside. As an example of the "precedent" effect of previous decisions one had only to look at the manner in which the North Benfleet decision was relied upon by this Inspector.[34]Thirdly, it was submitted, that the decision was irrational and/or that inadequate reasons had been given. The decision was incomprehensible since the sole factor apparently identified by the Inspector, the educational needs of the appellant's children, was not in the least unusual and could not sensibly be said to amount to a very special circumstance sufficient to outweigh the Green Belt policy objections.[35]Before turning to Mr Litton's submissions it is helpful to consider the North Benfleet decision which was relied upon by the Inspector. In a decision letter dated 9th August 2000 the Secretary of State rejected his inspector's recommendation not to grant planning permission for the stationing of residential caravans in the Green Belt. The Secretary of State set out the effect of the policy guidance in PPG2 and the national guidance on gypsy site provision in paragraph 6 of the decision letter:
"Government policy on Green Belt is set out in Planning Policy Guidance Note 2 (PPG2). That policy states that there is a general presumption against inappropriate development in the Green Belt and that such development should not be approved except in very special circumstances. Paragraph 3.4 of PPG2 states that the construction of new buildings inside a Green Belt is inappropriate unless it is for a particular purpose. The purposes listed do not include the use of land for Gypsy caravan sites. Inappropriate development is, by definition, harmful to the Green Belt. Very special circumstances will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
[36]In paragraph 12, under the heading "Very Special Circumstances":
"The Secretary of State's starting point is an assessment of the harm that would be caused to the Green Belt by the appeal proposals. As the Inspector said, inappropriate development is, by definition, harmful to the Green Belt."
[37]The Secretary of State agreed with the Inspector's conclusion that there would be a loss of openness and that the residential use of the appeal sites would undermine the purposes of including the land within the Green Belt, "... since it would urbanise part of the gap between Basildon and Thundersley and represent encroachment into the countryside."[38]In paragraph 14 the Secretary of State went on to say:
"Having established the degree of harm that would be caused to the Green Belt, in addition to the harm caused by reason of inappropriateness, the Secretary of State now turns to the material considerations in favour of the appeal proposals. He has already accepted that your clients and Mrs Macdonald are Gypsies... In respect of the need for more Gypsy sites, the Secretary of State concurs with the Inspector's conclusion...that there is a need for more Gypsy sites in the area and that allowing your clients' appeals would contribute to meeting this need. In his view this overall need should be given considerable weight in determining your clients' appeals. The Secretary of State agrees with the Inspector that given the extent of the Green Belt within the district, it was almost inevitable that any new Gypsy site would be in the Green Belt."
[39]The Secretary of State considered the family circumstances of each of the appellants. Two of the appellants were single parents, all of the families had children. There were therefore a number of children involved. "Five of the children currently living on the appeal sites attend school. In respect of three of those children the school has expressed concern at the consequences for the children's education if their homes were to be disrupted."[40]In the light of this material, the Secretary of State considered, "...that ensuring the education of all five children is not disrupted is of great importance and that, consequently, their education needs carry significant weight in the determination of the appeals."[41]In paragraph 16 the Secretary of State accepted the Inspector's conclusion that if the appeals were to be allowed the families would have a long-term base on their respective sites. "That would be of considerable benefit to their family life and, in particular, provide the most favourable circumstances for the younger children in each family to continue to attend school. The Secretary of State agrees that the benefit to family life and the continuing education of the youngest children is a positive factor in support of the appeals. He therefore considers that your clients' and Mrs Macdonald's personal circumstances should be given significant weight in the determination of the appeals."[42]In his overall conclusions the Secretary of State agreed with the Inspector, "...that each appeal proposal would be harmful because each represents inappropriate development in the Green Belt and each would cause a noticeable loss of openness to this part of the Green Belt. He also agreed that allowing the appeals would make a contribution to the significant need for Gypsy sites in the area and provide a settled base for four families which would facilitate the regular attendance at school of those children who are already attending school."[43]Having looked in a little more detail at those matters, the Secretary of State concluded thus:
"He is of the opinion that their personal circumstances, and in particular the children's education needs, carry significant weight. Consequently, when undertaking the Green Belt balancing exercise himself, he finds that the harm to the Green Belt - albeit substantial - is clearly outweighed by the Gypsy families' personal circumstances and the need for more Gypsy sites in the area. He is satisfied therefore that very special circumstances do exist which justify allowing all three appeal proposals in the Green Belt."
[44]On behalf of the Secretary of State, Mr Litton pointed out that this decision had been unsuccessfully challenged by the local planning authority under section 288 of the Act. The court, in dismissing the local planning authority's appeal, rejected submissions that the personal circumstances of the gypsies in that case were irrelevant and that it was irrational of the Secretary of State to give more weight to their personal circumstances than to the harm to the Green Belt.[45]In paragraph 38 of his judgment ( [2001] JPL 1184 ) Ouseley J said:
"The significance of the general need recognised the fact that it was almost inevitable that any new gypsy site would be in the Green Belt, albeit not necessarily in so harmful a site. The fact that similar circumstances might apply to other gypsy families simply meant that very special circumstances might be found to exist again. That is a matter for assessment on a case by case basis. I do not consider that the unquantifiable prospects of repetition (assuming, of course, that no other gypsy site provision is made) is of itself a basis upon which a court can hold that the decision in this case involved an irrational conclusion as to the existence of over-riding very special circumstances."
[46]Mr Litton points out that the claimant in the present case does not suggest that the Inspector failed to identify the main issue or the relevant development plan policies.[47]So far as the first ground of challenge is concerned, he submits that the Inspector expressly accepted the second defendant's evidence that he would not go to Tilts Farm or to any other shared site, consequently whether or not Mr Smyth was reasonable in adopting such an approach was irrelevant provided the Inspector was satisfied as to what the probable outcome of refusing permission would be, that is to say that the family would once again take to the road, and in this respect he clearly was.[48]In any event, he points out that the Inspector in paragraph 15 of the decision letter (see above) did consider the Council's contention that this argument could be advanced by many people facing problems of crime, drugs or vandalism, because the Inspector said that the life in the open that is traditional to gypsies leads more readily to conflict with other families sharing a confined area.[49]Given that the Inspector was satisfied that Mr Smyth would not take his family to Tilts Farm, or any other shared site, the proximity of such a site and the fact it had a number of vacant pitches on it was irrelevant. Thus the Inspector was entitled to say in paragraph 20 that the availability of other sites had not been decisive on the facts of this case.[50]The claimant does not contend that Mr Smyth's personal circumstances were not a material consideration, plainly they were. Once that concession is made, it was simply a matter of planning judgment for the Inspector whether in the circumstances of this case the weight that ought to be attached to those personal circumstances was so great as to constitute an overriding reason for granting planning permission, that is to say that they amounted to very special circumstances justifying inappropriate development in the Green Belt.[51]So far as the claimant's concerns about precedent are considered he submits that it did not advance such an argument in its representations before the Inspector or at the informal hearing. The only effect of this decision is that very special circumstances existed which justified the grant of planning permission for what would otherwise be inappropriate development in the Green Belt. This is the very exception which is recognised in PPG2 and therefore does not set any adverse precedent.[52]Once it is accepted that personal circumstances may, in principle, amount to very special circumstances, (see the Basildon case above) it simply becomes a matter of judgment for the Inspector in any particular case as to what weight should be attached to those personal circumstances.[53]In the present case the Inspector attached great importance to continuity of education for the second defendant's children, just as the Secretary of State had done in the North Benfleet case; the Inspector was entitled to adopt that approach. That did not mean that in another case a different inspector might not decide that such weight should be attached to that particular factor. Personal circumstances might not be so compelling or the harm to the Green Belt might be greater. Each case would turn upon its own particular facts.[54]So far as the third ground of challenge is concerned the Inspector's decision is clearly reasoned. Moreover, it cannot be said that it is a perverse decision. Mr Litton conceded that another inspector might have taken a different view and concluded that the harm to the Green Belt was such that it outweighed the personal circumstances identified by the Inspector in the present case. But, he submitted, it could not be said that no inspector could have reached the conclusion set out in this decision letter, or that the decision defied comprehension.[55]The appropriate threshold was to be found in a decision of Mr Christopher Lockhart-Mummery QC sitting as a deputy judge of this division, Fenton v Secretary of State for the Environment, Transport and the Regions [2000] JPL 1179. In that case Mr Lockhart-Mummery referred to the Court of Appeal's decision in Coughlan (see paragraph 16) and said of the decision letter before him:
"This decision letter is undoubtedly harsh. At first blush, if one were hearing the appeal oneself, one might not conclude that the increase in size, and the apparent increase from one to two bedrooms, would cause a tangible difference to the environment of Hall Farm or the character of the village as a whole. But that is not the threshold that (the appellant) must overcome. He must show that this decision "defies comprehension", or boarders on absurdity. I cannot accept that he can meet this threshold. The proposal was for a doubling in floorspace and an apparent increase from one to two bedrooms."
[56]He went on to say that although the Inspector's conclusion was one "as to which others might have different views", it was in his judgment "perfectly comprehensible". Conclusions:[57]I have not found this an easy decision. I do not accept the claimant's submissions under ground 1 that the Inspector was obliged to consider the reasonableness of the appellant's contention that he would not go to any shared site and that unless he obtained planning permission for a site of his own, he would take to the road, which would then disrupt his children's education. As Mr Litton submitted, if the Inspector accepted this evidence, as he apparently did, then the consequence, in terms of the effect on the children's education, was what was of importance, since that was the special circumstance particularly relied upon by the Inspector. However, if the reasonableness of the contention was not an issue, that does give rise to legitimate concerns as to the extent to which it could and would be advanced by others wishing to have a mobile home on a plot of their own in the Green Belt.[58]Turning to ground 2 of the challenge, although the word precedent was not used in the Council's representations, the claimant was clearly concerned that similar arguments to those advanced by the appellant could easily be advanced by other travellers who were dissatisfied with their living conditions, who had experienced problems of drug use, crime and vandalism on authorised sites, and who had children. Such problems are not confined to gypsy sites, but occur in many places even small villages. (See paragraph 14 of the decision letter). There was clearly a concern that a decision to accede to such an argument in this case would lead to its acceptance in other cases, and thus to a proliferation of individual dwellings in the Green Belt.[59]The Inspector responded to this concern in paragraph 15 by making the point that there might be more likelihood of conflict with other families sharing a confined area if those families were gypsies for whom life in the open was traditional. On the face of it, the Inspector's observations would apply to all persons falling within the definition of "gypsy" for the purpose of policies relating to the provision of sites for gypsy caravans. The breadth of this observation in terms of its implications for Green Belt policy does not appear to have been addressed by the Inspector.[60]Apart from the fact that the claimant had indicated at the informal inquiry, although not in his written representations, that he would not go to any other site, it is difficult to see how his position was in any way different from that of other gypsies. He has two children, but their educational needs, as described in the decision letter, are not in the least unusual. The claimant does not contend that personal circumstances are not capable of being very special circumstances, or that educational needs may not amount to such circumstances. In some cases, for example, there is evidence that children have special educational needs, or that they require particular facilities which are provided at specialist schools in the locality, or there is cogent evidence from the education authority that they would be particularly susceptible to disruption. On the face of it, there does not appear to have been any material of that kind in the present case, yet it would appear from the concluding sentences of paragraph 15 that it was the educational needs of the children which outweighed what the Inspector described as "the limited harm caused to the openness and purpose of the Green Belt."[61]In paragraph 13 the Inspector posed the question:
"Should the appellant's desire to have a site for his own family outweigh the need to maintain the openness of the green belt?"
[62]Absent some very special circumstance, that is a desire that might well be shared by very many gypsies (and non-gypsies). Unless one is careful to identify what the very special circumstance is, the Council's concerns about precedent are well-founded.[63]It is not suggested that the number of children, two, is in the least unusual. The Inspector acknowledged in paragraph 20 of his decision letter that the present case was distinguishable from the Secretary of State's decision in North Benfleet and other cases that had come before the European Court of Human Rights, because in the present case there was no issue as to the availability of other sites. Nor was there any finding, as there had been in the North Benfleet case, that there was a need for additional sites which would, in any event, have to be met somewhere in the Green Belt. It was simply the appellant's refusal to countenance any other site which would lead to the disruption of his children's education. The decision letter does not suggest that there was anything unusual in respect of the children's educational needs.[64]In these circumstances I find it very difficult to understand how the Inspector could have reached the conclusion he did. Whether very special circumstances existed was for him to decide, but something capable of being reasonably regarded as a "very special" circumstance had to be identified. Mr Litton reminds me that the fact that I might find the decision surprising is not the true test (see Fenton above). In my judgment, this decision borders on the perverse: how could the educational needs of these two children as set out in the decision letter be described as a very special circumstance? This is not a circumstance which would be apparent on a site visit, where the court would be particularly reluctant to question the judgment of the person who had seen the site. Since the decision is on its face so surprising, it is necessary to examine the second limb of the third ground of challenge, inadequate reasoning, with a little more care. The surprising conclusion may be explicable if the wrong test has been applied.[65]It will be recalled that PPG2 paragraph 3.2 explains the Secretary of State's policy in Green Belts:
"Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
[66]The Secretary of State's approach to what he described as the "Green Belt balancing exercise" is set out in the Benfleet decision letter. He started with the premise that inappropriate development was, by definition, harmful to the Green Belt and then went on to consider the extent to which the impact of the appeal proposals on the openness of the Green Belt added to that harm by definition (see paragraph 14 of the decision letter).[67]Thus applying the policy set out in paragraph 3.2 of PPG2, the proper question for the Inspector in the present case was whether the harm, by reason of inappropriateness, and the further (albeit limited) harm caused to the openness and purpose of the Green Belt were clearly outweighed by other considerations. Those other considerations were confined to "the benefit to the appellant's family, and particularly the children, of allowing the appeals." But it was only if those benefits not merely outweighed "the limited harm caused to the openness and purpose of the green belt", but if they clearly outweighed the harm by reason of inappropriateness and, the further , albeit limited, harm caused to the openness and purpose of the Green Belt, that very special circumstances could be found in terms of paragraph 3.2 of PPG2. It will be noted that in paragraph 19 of the North Benfleet decision the Secretary of State said in terms that very special circumstances did exist on the facts of that case.[68]In paragraph 15 of the present decision letter the Inspector did not state in terms that there were very special circumstances which justified permitting inappropriate development in the Green Belt. The decision letter has to be read as a whole and if this was the only point of criticism I would have accepted Mr Litton's submission that since this was the test posed in paragraph 3 it would be unrealistic to assume that it was not still in the Inspector's mind in paragraph 15 of the decision letter. However, it is very important that full weight is given to the proposition that inappropriate development is by definition harmful to the Green Belt. That policy is a reflection of the fact that there may be many applications in the Green Belt where the proposal would be relatively inconspicuous or have a limited effect on the openness of the Green Belt, but if such arguments were to be repeated the cumulative effect of many permissions would destroy the very qualities which underlie Green Belt designation. Hence the importance of recognising at all times that inappropriate development is by definition harmful, and then going on to consider whether there will be additional harm by reason of such matters as loss of openness and impact on the function of the Green Belt.[69]I acknowledge that the Inspector in paragraph 12 recognised that a gypsy caravan site, as inappropriate development, would in itself cause harm to the Green Belt, and said that further harm would be caused by the impact (albeit limited) on the openness of the Green Belt and the countryside. But this approach is to be contrasted with the test posed in the last sentences of paragraph 15:
"On balance, the benefit to the appellant's family and particularly to the children of allowing the appeals outweigh the limited harm caused to the openness and purpose of the green belt."
[70]When striking the all-important balance, the Inspector appears to have approached the matter on the basis that because there was only limited harm caused to the openness and purpose of the Green Belt, this could be outweighed by the children's educational needs, even though he did not suggest that these needs were in the least unusual. Such an approach to the Green Belt balancing exercise diminishes the weight which should properly be attributed to Green Belt policy. Given that inappropriate development is by definition harmful, the proper approach was whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt, was clearly outweighed by the benefit to the appellant's family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy (my emphasis).[71]I am anxious that this decision should not be regarded as an attempt to force inspectors to use particular formulations of policy or particular phraseology. A decision letter has to be read as a whole and in a common sense way. Questions of planning judgment are for the Inspector.[72]Adopting a common sense approach to this decision letter read as a whole, the eventual conclusion is readily intelligible if there was no need to show very special circumstances and if the issue before the Inspector was a simple balancing exercise between the educational needs of the appellant's children and some limited harm to the openness and purpose of the Green Belt. Even though there would appear to be nothing unusual about the children's educational needs, if they were to be balanced against some limited harm, one could understand how they might just outweigh, if not clearly outweigh, such harm.[73]However, it is very difficult to see how those relatively unexceptional educational needs could reasonably be said to clearly outweigh, not merely the limited harm caused to the openness and purpose of the Green Belt, but the harm by reason of inappropriate development when coupled with the further limited harm to the openness and purpose of the Green Belt. How can the circumstance relied on by the Inspector be reasonably described as "special", let alone "very special"? Reading the letter as a whole I am left in real doubt as to whether, in striking the Green Belt policy balance, the Inspector applied the correct policy, as set out in PPG2.[74]It is important that the need to establish the existence of very special circumstances, not merely special circumstances in Green Belt cases, is not watered down. Even if it cannot be categorised as perverse, this decision is so perplexing on its face that it is of particular importance that the Inspector should be seen to have applied the correct test in Green Belt policy terms. I fully accept that there will be many cases where the underlying merits of the decision are relatively obvious, so that the court can safely ignore what might be regarded as infelicities in drafting. It may be obvious in the great majority of cases that it would make no difference whatsoever to the eventual conclusion on the merits whether the true test was whether one factor was outweighed by another, as opposed to whether it was clearly outweighed by another, or whether limited harm to openness was to be regarded as reducing harm in Green Belt policy terms, or as additional harm over and above that due to inappropriateness, or whether circumstances were described as special rather than very special.[75]In most decisions, fine distinctions of that kind are likely to be of no practical importance and dismissed as matters of emphasis, but there will be a small minority of very finely balanced cases where such detail will be important. This is such a case. Given the terms of paragraph 15 of this decision letter I am left in real doubt as to whether the policy in paragraph 3.2 of PPG2 was correctly applied by the Inspector.[76]For this reason I allow the appeal and the application. I quash the decision under section 78 and I remit the decision in respect of appeals A and B. MR LITTON: Indeed. MR JUSTICE SULLIVAN: It is always difficult, the precise form anyway. Yes, that is it. Thank you. MR HILL: My Lord, in the circumstances I would apply for an order that the first defendant pays the claimant's costs of these proceedings. MR JUSTICE SULLIVAN: Can you resist that, Mr Litton? MR LITTON: My Lord, I do not think that I can reasonably. MR JUSTICE SULLIVAN: I would not try to do so unreasonably. MR LITTON: My Lord, in so far as the amount, of course, is concerned, I hope my learned friend does not mind me saying this, but agreement has been reached as to what that figure should be. If I am prepared to accept to pay the costs, I might as well tell you what they should be. MR JUSTICE SULLIVAN: Yes, please do. MR LITTON: £8,200, which is a small reduction from the schedule of costs that, I believe, was put before your Lordship and essentially reflects the items that were put in for an adjourned hearing on 26th October, which was not the fault of the Secretary of State, but because, I think, the papers were not served on us by the claimants. MR JUSTICE SULLIVAN: Yes, thank you very much. Then the application is allowed. The appeal is allowed. The first defendant is to pay the claimant's costs. Those costs to be summarily assessed in the sum of £8,200. MR HILL: Thank you, my Lord. MR LITTON: My Lord, I do have a further application to make and that is an application for permission to appeal. MR JUSTICE SULLIVAN: Yes. MR LITTON: My Lord, I think I properly ought to make that application against the criteria set out in CPR 52.13 because in so far as the section 289 appeals is MR JUSTICE SULLIVAN: The second appeal. MR LITTON: They are second appeals, albeit that the section 288 appeal is a statutory application and therefore I could satisfy a lesser test, as set out MR JUSTICE SULLIVAN: Although I do not think that CPR52.13 is against you. I do not think it is against you because I think really the spirit of that is where you have gone down once on an appeal and then the question is do you go down again. Well, in a sense this is the first time you have gone down, as it were, it has gone the other way. I think Mr Hill would have been in difficulties if he had gone down a second time. MR LITTON: I appreciate that. MR JUSTICE SULLIVAN: So that seems to me, anyway. MR LITTON: Because it is, in a sense, our first bite of the cherry, if I could put it that way. MR JUSTICE SULLIVAN: Yes, that is right. Yes. MR LITTON: But, in any event MR JUSTICE SULLIVAN: If it helps you, Mr Litton, although this case very much turns on its facts, I have found it a difficult case and I make no secret of it and I am perfectly content to acknowledge always that I may be in error, but one is more likely to be in error in more difficult cases. So that is my approach to it, unless you want to assist me by persuading me it was even more difficult. MR LITTON: My Lord, what I would say is clearly your Lordship did find it, as your Lordship said, a difficult case and albeit that your Lordship found for the claimant on a limited point, which is, effectively, that in a marginal case it is more important that the Inspector should set out the correct statutory test for the determination of the applications or the appeals. In my submission, that is a matter which does raise an important point of principle in practice because, in my submission, it is difficult to see why it is in terms of the approach adopted by an inspector and the drafting of a particular decision letter why on one hand it is more important than the other. And so I would say that that is a matter which ought to be looked at again more closely by the Court of Appeal. MR JUSTICE SULLIVAN: Yes. MR LITTON: My Lord, I would also say that in the context of this particular decision letter, I would say that in fact the Inspector, albeit your Lordship has found to the contrary that he did in fact approach in that way, simply by reference to paragraph 12 of his overall conclusions, where he acknowledges that there was harm by virtue of being inappropriate development in the Green Belt which he said causes harm and then further harm was caused by the, albeit limited, additional harm. My Lord, I would say that adopting the correct approach in terms of construction of decision letters, taken as a whole, taking that paragraph together with the last sentence of paragraph of 15, it still is abundantly clear that he was conscious of the fact that there were two elements of harm which he had to overcome for him to grant planning permission and that he did that in the circumstances of this case. My Lord, I would say that there is not only an important point of principle but there is indeed a good chance. MR JUSTICE SULLIVAN: A real prospect of success. MR LITTON: Indeed. MR JUSTICE SULLIVAN: Yes. Yes, Mr Hill? MR HILL: My Lord, naturally, I resist that application. Your Lordship's judgment has turned very much on the individual facts of this decision and the way in which the Inspector formulated his decision letter, rather than turning on any particular point of law of general importance that is likely to interest the Court of Appeal and I would urge your Lordship not to grant permission. MR JUSTICE SULLIVAN: Yes, though it may sound conceited to say that since I found it difficult to decide, I think that an appeal would have a real prospect of success. Naturally I hope I am right, but I always acknowledge the possibility of error. So you get permission to appeal, Mr Litton. MR LITTON: I am grateful. MR JUSTICE SULLIVAN: Thank you.

Cited in 14 later judgments

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