Mole Valley District Council, R (on the application of) v First Secretary of State & Anor [2005] EWHC 1079 (Admin)

Case No CO/6681/2004[2005] EWHC 1079 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 25 April 2005
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE MOLE
Between
THE QUEEN ON THE APPLICATION OF MOLE VALLEY DISTRICT COUNCILClaimant-v-
Between
FIRST SECRETARY OF STATEDefendantHENRY W SMITHDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M BEARD (instructed by Sharpe Pritchard) appeared for CLAIMANTMR P COPPEL (instructed by the Treasury Solicitor) appeared for FIRST DEFENDANTMS V EASTY (instructed by Community Law Partnership) appeared for SECOND DEFENDANT
J U D G M E N T
[1]HIS HONOUR JUDGE MOLE: This is an application under section 288(1)(b) of the Town and Country Planning Act 1990 by Mole Valley District Council for an order quashing a decision dated 23rd November 2004 of an Inspector appointed by the First Secretary of State in which planning permission was granted for a change of use of land at the Evergreens, Ryegate Road, to use as a private gypsy site, subject to a number of conditions. Mr Henry Smith, the second defendant, applied to the claimant as the local planning authority for planning permission on 11th September 2003. He was refused permission by notice dated 12th November 2003 and from that decision he appealed to the Secretary of State under section 78 and the inquiry was held over two days on 20th and 21st October 2004.[2]The basis upon which this court may act to quash the Secretary of State's decision is, relevant to this case, that the action is not within the powers of the Act. In other words, the Secretary of State's decision was unlawful. The second ground, namely that the requirements of law were not complied with, does not apply to this case.[3]The principles upon which the court can say that the Secretary of State's action is not within his powers, or unlawful, are well-known and analogous to those in the general judicial review jurisdiction. In particular, the Secretary of State must not take into account irrelevant material and he must not fail to take into account relevant material. The Secretary of State must not act perversely; that is to say, he must not come to a decision that no reasonable person in the position of the Inspector appointed by the Secretary of State, properly directing himself or herself on the relevant materials, could reach.[4]It is this latter principle that Mr Mark Beard for the claimant relies on. He contends that the Inspector's conclusion that very special circumstances existed to justify granting planning permission for the proposed development in the Green Belt was perverse on the material before her. I shall set out enough of the facts and policy to explain how that conclusion came to be the determining factor in the appeal.[5]Mr Henry William Smith, it is agreed, is a gypsy for the purposes of planning law and policy. He had lived as a child on the appeal site owned by his father. Following appeals and court action in 1990, the family moved to a gypsy site in Dorking in 1992 and there was a further move thereafter. Mr Smith's circumstances are fully set out in the decision letter in paragraphs 39 to 44 and I will not repeat them in this judgment. I do, however, note that Mr Smith bought the field with the appeal site in it from his father for £2,000. This field was part of the appeal site that was the subject of appeal back in the 1990s. I further note that Mr Smith then applied for planning permission. He did not simply move on to the site.[6]The site is in the Green Belt and in an Area of Great Landscape Value. Indeed, the Inspector records that about 80 per cent of Mole Valley District, outside the urban areas, is in the Green Belt. Government policy in relation to development in the Green Belt is to be found in PPG2, and I turn in particular to paragraphs 3.1 and 3.2. Paragraph 3.1 reads:
"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."
[7]I note in parentheses that it is agreed that a gypsy caravan site is "inappropriate development" within paragraph 3.1. Paragraph 3.2 continues:
"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."
[8]Now this wording clearly requires the decision-maker to conduct a balancing exercise. Against the harm by reason of inappropriateness and any other harm must be weighed other circumstances including, if it be thought right, any claimed advantages. Unless the aggregate of harm is clearly outweighed by other considerations, very special circumstances will not exist.[9]It does not of course follow from that reading that if the aggregate of harm is outweighed, that therefore those considerations must, by that alone, amount to very special circumstances. Sullivan J pointed this out in a case that Mr Beard relies on and which all the parties recognise as being of considerable relevance to this matter called R(Chelmsford Borough Council) v First Secretary of State (Draper) [2003] EWHC 2978. Paragraph 56 encapsulates the point that is of relevance to the current matter:
"The circumstances must be not merely special in the sense of unusual or exceptional, but very special. The decision taker, whether it be the Secretary of State, one of his Inspectors or a Local Planning Authority, has to be satisfied that the circumstances relied upon are indeed very special, but it does not follow that, merely because the decision taker considers that they outweigh the harm to the Green Belt, they are reasonably to be described as very special. The breadth of discretion that is conferred upon decision takers in other (non-Green Belt) cases is deliberately constrained by paragraph 3.1 of PPG2. The decision taker must be satisfied that there are very special circumstances. His judgment that there are such circumstances is subject to review on Wednesbury grounds. A factor is not a very special circumstance merely because the decision taker chooses to describe it in that way. The decision taker must be able to point to a circumstance or circumstances which, viewed objectively, are reasonably capable of being described as 'very special'."
[10]Perhaps the word "circumstances" in the last sentence that I have just quoted is worth stressing, because the authorities also make it quite clear that "circumstances", none of which on their own could be said to be very special, may in aggregate amount to very special circumstances. That view, which one may well feel is no more than common sense, is supported by the authority of Basildon District Council v First Secretary of State [2004] EWHC 2759.[11]Indeed, the difficulty that may face a claim that one circumstance on its own is very special is well illustrated by the Chelmsford case itself. In that case, at paragraph 49, Sullivan J recorded that the only circumstance relied upon by the Secretary of State as being very special circumstances were the educational needs of the second defendant's two daughters. He goes on to record that counsel for the Secretary of State did not contend that those needs, as described in that paragraph, were in the least unusual, and when he came back to analyse them later he again recorded that there was nothing out of the ordinary in those girls' educational needs.[12]I step just a pace beyond that to note that Sullivan J did not, very sensibly, go so far as to suggest that educational needs on their own could not be a very special circumstance and considered that there might be circumstances in which they were. The Chelmsford case, however, was not such a case: those circumstances on their own did not amount to very special circumstances.[13]It is paragraph 56, as I have said, that Mr Beard particularly points to. He says that the circumstances that the Inspector relied upon as being very special, when viewed objectively, were not reasonably capable of being described as very special. Before I leave the Chelmsford case, I remark that at paragraph 66 Sullivan J repeated a point that has been made in many of the authorities, which is this:
"There will be many cases where the inspector or the Secretary of State is uniquely placed to decide whether or not a particular factor can fairly be described as a very special circumstance."
He again goes on to consider those circumstances.[14]The way that the Inspector dealt with the matter was this. She started by setting out the relevant policies, national structure plan and local plan policies in relation to the Green Belt and the area of great landscape value. I note particularly that she referred to a criterion-based policy, HSG11, in the local plan which governs proposals for gypsy caravan sites. She then identified the issues and, taking the issues one by one, she carefully identified the harm that in her judgment would flow from the proposed development. She then considered the need for and the provision of gypsy sites in the area and the personal circumstances of the appellant and his family.[15]I will not set what she said about this out. I will simply remark that in my judgment it was done thoroughly. Indeed, I note that it is not suggested that she failed to take into account any relevant matter or took into account anything that was irrelevant; nor that, for example, she misinterpreted policy.[16]After examining the personal circumstances of Mr Smith, at paragraph 44 she said this:
"It seems to me that he [that is, Mr Smith] has done all that he could reasonably be expected to have done in the circumstances to make satisfactory arrangements for himself and his family. He applied to the Council's waiting list for gypsy sites at the earliest opportunity and the purchase of an alternative site in the locality would appear to be so far beyond his means as to be an unrealistic option, even without the hurdle of obtaining planning permission for such a use. "
Unlike the situation in the appeal 14 years ago there is no realistic foreseeable prospect of an increase in public site provision and no certainty of the appellant being offered a pitch on an existing site within any definite timescale. A letter from the Council's gypsy sites manager and anecdotal evidence suggests that priority is given to family members of existing tenants when plots do become vacant. A mobile home park cannot be regarded as a realistic alternative. Many have minimum age rules. Moving on to them requires a considerable financial outlay to purchase a mobile home and lease a pitch. Touring caravans are rarely permitted and gypsies are seldom welcome, if admitted at all. "In my view the accommodation needs of Mr Smith junior and his young family are specific, immediate and acute. There are no realistic alternatives open to them. To remain living on his parents' driveway in the hope that something better might turn up is not a reasonable or acceptable option. Neither do I consider it reasonable to expect him to extend his search to areas where he has no family connections. There is a significant shortfall in gypsy site provision across the south east of England and land prices are high."[17]The balancing exercise was undertaken by the Inspector from paragraph 50 onwards. In paragraph 51 she returned to the personal circumstances of the appellant in these words:
"In my view the personal circumstances of the appellant and his family are exceptional. Indeed, it could be argued that as the first instance of an application for such a use in Mole Valley in some ten years, the requirement in itself could be regarded as an indicator of an exceptional situation. Circular 1.94 says that gypsies make up a tiny proportion of the population but their land use requirements must be met."
[18]Then, in a passage that Mr Beard particularly points to, she said:
"I acknowledge that there are many young couples, some with children themselves, who are forced through lack of funds to live with their parents. But they have a reasonable expectation of in time finding suitable bricks and mortar housing of their own, either through purchase or rent in the private or public sectors. In the meantime they may have to live in cramped and perhaps less than ideal conditions, sharing normal facilities of a house, but one could rarely say that these are unsuitable arrangements."
[19]I just comment about that passage in passing, since it has been the subject of criticism, that I do not find it an illogical or surprising diversion in the Inspector's thought. It seems to me that it is perhaps not entirely necessary to the thrust of her argument, but a perfectly reasonable further explanation of the way that her mind was working. She continues in paragraph 52:
"Mr Smith junior has clearly expressed and maintained his aversion to living in a house over many years, despite numerous practical difficulties. As part of his gypsy heritage and upbringing, this lifestyle has to be respected. This and his limited capital and earning capacity substantially restrict the accommodation options available to him. In the light of all the local circumstances, I consider the chances of him and his family securing suitable alternative accommodation in the foreseeable future, apart from moving on to the appeal site, as negligible. It is rare that personal circumstances are of significant weight in a planning decision, but in this case I believe they are."
[20]Then she turns to the balance in paragraph 53 in these words:
"Overall it is necessary to undertake a balancing exercise. On one side is the substantial weight to be attached to the harm arising from the inappropriate nature of the development in the Green Belt and the additional limited harm caused by the loss of openness, encroachment on the countryside, and that arising from occasional delays to traffic on the A25. On the other, a shortage of gypsy sites in the area generally, with no reasonable expectation that this situation will improve in the foreseeable future, and the acute personal needs of the appellant, with no reasonable alternative accommodation options available to him, despite his best endeavours. In my view these two latter factors can objectively be described as very special circumstances, being also sufficient to clearly outweigh the harm by reason of inappropriateness and all other harm identified in this case. For those reasons, [she concluded] planning permission is justified."
[21]It is of course on the penultimate sentence of that paragraph and the judgment, that the two latter factors can objectively be described as very special circumstances, that Mr Beard concentrates his fire.[22]I should start by saying that he does not contend that there is any error of methodology in the Inspector's decision. He also agrees that she had perfectly proper and careful regard to the judgment of Sullivan J in the Chelmsford case. Mr Beard says that it is objectively unreasonable to describe Mr Smith's circumstances as exceptional.[23]He expands upon this in paragraph 33 of his skeleton. He points out that, as indeed the Inspector recorded, there is a recognised shortfall of provision of gypsy sites cross the south-east of England. There are many gypsies and traveller families who do not have a lawful pitch or any place to stop. They may be forced to live by the roadside. Such circumstances, he says, are commonplace and, therefore, he says, it is difficult to see how they can be argued to be very special. He goes on to develop that by saying that because the argument can be made by others, it will set a difficult precedent for the District Council to cope with. They are likely to be met with a number of other planning applications in similar circumstances.[24]It seems to me, to deal with that argument, that there may be others. Indeed, one may say that there will be others who will claim very special circumstances. There may even be others who, on careful analysis, will be seen to have very special circumstances. If, considered properly and objectively, an applicant is found to have very special circumstances, it does not seem to me that it can be right to deny him the fact that those are very special because there may be others, maybe many others, in the same position. That would mean that a problem that was recognised as being a very particular problem for one man would, because there are many people suffering from exactly the same problem, no longer be treated as sufficiently compelling to amount to a very special circumstance. That seems to me to be an unattractive argument. But the simple answer to the point is that it will be for any further applicant to make out very special circumstances. Any new applicant will have a high threshold to pass, but if he can get over it, so be it.[25]Mr Coppel and Ms Easty, in their helpful skeletons, respond that it is perfectly clear that the Inspector approached the balancing exercise in exactly the right way. It is impossible to say that her decision that objectively there were very special circumstances is perverse or one that could not reasonably be reached by an Inspector.[26]In my judgment the Inspector examined every element of both the degree of harm, on the one side of the balance, and of the need and the personal circumstances of the applicant, on the other, with evident care. She set out the right test as a matter of law. She then applied the test and identified what she judged to be very special circumstances. She was, as the phrase I quoted from Sullivan J's decision foreshadows, uniquely placed to decide whether or not the particular factors she was looking at could fairly be described as very special.[27]In my judgment it is quite impossible to say that the circumstances she described are not in aggregate, viewed objectively, reasonably capable of being described as very special. For those reasons, this application fails.[28]MR COPPEL: I am grateful, my Lord. My Lord, there should have been passed up to the court a summary assessment of the Secretary of State's costs which has been passed to my learned friend. I do not understand the principle is being objected to and, as I understand it, there may be agreement between the First Secretary of State and the claimant in relation to the figure. The matter has taken a little bit less than had been anticipated and the Secretary of State would be content with £4,800 by way of costs.

HIS HONOUR JUDGE MOLE: What do you say about that, Mr Beard?

[30]MR BEARD: My Lord, I do not object to the principle at all and I have no instructions to query that figure.

HIS HONOUR JUDGE MOLE: It sounds as if you are getting a special offer in a sense.

[32]MR BEARD: I make no comment.[33]HIS HONOUR JUDGE MOLE: In that case, the claimant will pay the costs of the First Secretary of State in the sum of £4,800. I understand I have to say something about VAT, do I not?[34]MS EASTY: Yes, my Lord. I am requesting the legal aid assessment of costs because I am legally funded.[35]HIS HONOUR JUDGE MOLE: You are legally funded. Are you claiming your costs?[36]MS EASTY: My Lord, I cannot really do so.

HIS HONOUR JUDGE MOLE: I do not think so.

[38]MS EASTY: All I can ask for is a detailed assessment.[39]HIS HONOUR JUDGE MOLE: I see. You may have a detailed assessment.[40]MS EASTY: Thank you, my Lord.

HIS HONOUR JUDGE MOLE: Thank you, counsel, for your assistance.