Simmons v First Secretary of State & Anor [2005] EWHC 287 (Admin)

Case No CO/3690/2004

[2005] EWHC 287 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday, 2 nd March 2005

Before

MR JUSTICE NEWMAN

Between

ROBERT SIMMONSClaimant

FIRST SECRETARY OF STATEFirst Defendant

SEVENOAKS DISTRICT COUNCILSecond Defendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

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Official Shorthand Writers to the Court)

Mr Alan Masters (instructed by Bramwell Browne & Odedra) for Claimant

Mr Tim Morshead (instructed by the Treasury Solicitor) for First Defendant

Mr Robert Lewis (instructed by the Council) for Second Defendant

Judgment

[1]This is a challenge to a decision of the first defendant, the First Secretary of State (“the Secretary of State”), to uphold an enforcement notice served by the second defendant (“the Council”) requiring the claimant to discontinue the use of land in Halstead, Kent for stationing of caravans for residential purposes. The land lies in the Green Belt and a Special Landscape Area. The claimant is a gypsy. The Secretary of State declined to follow the recommendation of the inspector. His decision is challenged on the grounds of irrationality, error and perversity. The challenge also raises an important issue as to whether there is a general evidential burden upon a gypsy, who has taken up unauthorised occupation of a site within a Green Belt area, to establish that he has carried out searches for alternative sites. If any burden exists, there are consequential issues as to whether the requirement to carry out searches extends to the local planning area in which the application is made or beyond, to the county or to regions outside the county, in particular to any region where the gypsy may, on his travelling circuit, have connections. Yet further, there are issues as to what weight can be attached to any failure to make searches for an alternative site. The claimant has raised a number of other grounds, to which I must come, but in my judgment the case turns on whether the Secretary of State was entitled to conclude that there was a “lack of evidence of a search for other sites” and to weigh that against the claimant.

Central Facts

[2]The claimant and his family are Irish travellers and fall within the definition of gypsies in section 24(8) of the Caravan Sites and Control of Development Act 1960. He bought an area of open land extending to some 0.3 hectares at Station Court, east of Knockholt Station, Sevenoaks Road, Halstead, Kent (“the site”). The site is within the Metropolitan Green Belt. On 27th June 2003 the second defendant served an enforcement notice on him. Thereafter, an inspector was appointed to deal with the defence to the enforcement notice at a local inquiry which sat over some four days between 3rd and 6th February 2004. The Secretary of State called the appeal in for his own decision rather than allowing it to be determined by an inspector, on the ground that “the appeal relates to proposals for significant development in the Green Belt”.

[3]The inspector recommended that the appeal be allowed because he considered that very special circumstances existed in this case. The Secretary of State disagreed with the inspector’s recommendation and, by a decision letter dated 2nd July 2004, he dismissed the claimant’s appeal.

The Inspector’s Report

[4]The inspector’s report is a lengthy document and it contains very full summaries of the cases of the respective parties, in particular the claimant’s case, the case for the second defendant and the case for the Parish Council. The claimant had the benefit of representation by counsel, Mr Masters, and a professional adviser, Mr Cox. Proofs of evidence were made available to the inspector and oral evidence was given which was subjected to cross-examination. As one would expect, it was agreed that the site fell within the Green Belt and also comprised land within a Special Landscape Area.

[5]A number of other matters were also agreed. Those material to the issues the court has to decide are that the claimant and his family are Irish travellers and gypsies. Secondly, that use of the land as a private gypsy caravan site constituted development which was inappropriate in the Green Belt. Thirdly, that the whole of the Sevenoaks District outside the built-up areas is in the Green Belt. Fourthly, that policy H20 of the Sevenoaks District Local Plan, which sets out criteria for gypsy caravan site proposals, was not based on a quantitative assessment of need or a search for suitable sites.

[6]It being recognised that the material question was whether very special circumstances existed to justify inappropriate development in the Green Belt, the following matters were identified and agreed to be material considerations:(1) The appropriateness of the development plan policies towards gypsies in the light of Circular 1/94;

(2) The extent of any general need for gypsy accommodation in the area;

(3) The specific needs of the claimant and his family for accommodation;

(4) The availability of alternative sites;

(5) The personal circumstances of the claimant and his family. I shall take each of these in turn following the inspector’s report and conclusions.

Issue 6(1)

[7]As to the appropriateness of the development plan policies and the harm to the Green Belt, the inspector concluded (paragraph 84):

“I conclude that the practical harm to the Green Belt in terms of loss of openness and in visual terms is very limited”

. So far as Local Plan Policy EN7 which is concerned with Special Landscape Areas, the inspector concluded, having surveyed the material, that “Whether or not the degree of harm can fairly be described as significant enough to take the development outside Policy EN7, it is a factor which tells against the grant of permission and carries some weight”.

[8]Local Plan Policy H20 set out twelve criteria with which proposals for gypsy caravan sites should comply, although the supporting text recognised that it would not be possible to meet all of them on any one site. That said, the inspector concluded (paragraph 92): “In summary I find that all the criteria set out in Policy H20 are met, or would be met if suitable conditions with regard to the total number of caravans, landscaping and screening, and external lighting were imposed on any permission granted, and implemented and enforced”.

[9]The inspector considered the extent to which Circular 1/94 had to be followed. He referred to the Kent Structure Plan which placed an obligation on District Councils to quantify the need for gypsy accommodation and to make provision for that need through Local Plans. No such assessment had been made in Sevenoaks District and no land for gypsy caravans sites was allocated in the Local Plan. He concluded that there was a significant need in Sevenoaks, and in Kent generally, for accommodation for gypsies. There were no vacancies on any of the local authority gypsy sites in Kent and there was a waiting list for each site. In the Sevenoaks District the official count for January 2003 showed that 15% of the total number of gypsy families recorded in the district were on unauthorised sites. But these counts probably, the inspector concluded, underestimated the true need. For example, there were six planning applications for gypsy sites in just over a year and nine gypsy families in the district had lost their planning appeals and, therefore, currently needed to find alternative sites.

Issue 6(2)

[10]In the light of this material the Council had conceded that there was a significant need for the provision of further gypsy sites in the district. The inspector recognised that the Council was in a difficult position because all land outside built-up areas in the district is in the Green Belt and the unqualified advice contained in Circular 1/94, which was reiterated in the Structure Plan, was to the effect that development plans should not allocate Green Belt land for gypsy sites.

[11]The inspector’s conclusion was that, in not carrying out any quantitative assessment or search for sites, the Council had failed to comply with the national and strategic policy and that the criteria-based policy in the adopted local plan did not adequately address the needs of the gypsy community for accommodation. He concluded that the policy should therefore carry little weight.

Issue 6(3) and 6(5)

[12]As to the accommodation needs of the claimant and his family, the inspector held (paragraph 98):

“There is no dispute that the appellant and his family are gypsies according to the statutory definition. They have travelled throughout north Kent for many years, but not exclusively in the county, staying on private gypsy sites on an unauthorised basis or on unauthorised sites. Thus they have connections with Sevenoaks and with several other areas. I conclude that they are in need of a site, although that need is simply part of the overall need in the north Kent area and there is no obvious reason why it should or should not be met at the appeal site or in Sevenoaks rather than elsewhere.”

I shall need to return to the significance of this conclusion when evaluating the submission advanced on behalf of the Secretary of State that the claimant had a burden to search for alternative sites not only in the Sevenoaks district, and not only in Kent, but outside Kent, at least where, in the course of his travelling on the gypsy circuit, he had connections.

Issue 6(4)

[13]As to the availability of alternative sites, it is necessary to set out the paragraph containing the inspector’s conclusion (paragraph 99):

“It is agreed that there are at present no vacant pitches on public or private sites in Sevenoaks or in Kent as a whole to which the appellant could move. No land for gypsy caravan sites is allocated in the development plan and any site which the appellant himself might identify in the District would be in the Green Belt and therefore subject to the same objections as the appeal site. There is logic in the Parish Council’s submission that land for gypsy caravan sites should be sought or allocated in those parts of the county outside the Green Belt. However, in the absence of any countywide assessment of need or any mechanism for dividing the responsibility to provide sites between Districts, it seems to me that there is no likelihood of any such sites becoming available in the short term.”

The Decision Letter (“DL”)

[14]Paragraph 7 of the DL made reference to Circular 1/94. The following comment was made:

“In that guidance the Government recognised that many gypsies would like to find and buy their own sites to develop and manage. Local Plans are, whenever possible, to identify locations suitable for gypsy sites. Where that is not possible plans should set out clear, realistic criteria for suitable locations as a basis for site provision policies. The guidance repeats the advice that gypsy sites are not regarded as being among those uses of land which are normally appropriate in Green Belts.”

[15]The Secretary of State, as he was entitled to do, reached a different conclusion in connection with the degree of harm which the development caused to the Green Belt. He could not accept that the harm was as limited as the inspector concluded. He looked at the character of the wider area. As a result, the Secretary of State concluded that:

“Unless it can be shown that very special circumstances exist, the development would fail to accord with national planning guidance in PPG2, with structure plan policy MGB3 and Local Plan Policy GB2 designed to protect the openness of the Green Belt”

Very Special Circumstances

[16]I shall set out the conclusion on very special circumstances reached by the inspector and then, so that they can be considered together, the Secretary of State’s conclusion. Paragraph 102 of the inspector’s report stated:

“I have found that a significant unmet need for gypsy sites exists, both in Sevenoaks and in Kent generally. The criteria-based policy contained in the Local Plan fails to comply with national and strategic policy and does not adequately address the needs of the gypsy community for accommodation; it should therefore carry little weight. In my view the unmet need for accommodation, and the authority’s failure to address that need adequately, together with the lack of alternative sites available to the appellant and the importance of the educational needs of his youngest child, do in aggregate amount to very special circumstances.”

His conclusion was based on four factors: unmet need, the authority’s failure to address need, the lack of alternative sites and the educational needs of the child.

[17]The Secretary of State did not disagree with the inspector’s conclusion that, because there had been no quantitative assessment of need, it was not possible to know to what extent needs were being met by existing site provision. He agreed that the Council was in a difficult position because the entire district outside of the built-up areas is in the Green Belt. The Secretary of State, therefore, accepted:

“… that there is an unmet need for sites in the District and County, which adds some weight to your client’s case, but the shortage is not [in his view] alone sufficient to amount to very special circumstances in its own right.”

The inspector had not concluded that unmet need was sufficient “in its own right”.

[18]The Secretary of State took no direct issue with the conclusion of the inspector (see paragraph 12 above and paragraph 98 of the Report) that the claimant’s need of a site was simply part of the overall need in the north Kent area and that there was no obvious reason why it should or should not be met at the appeal site or in Sevenoaks rather than elsewhere. His conclusion on the harm to the Green Belt, which differed from the inspector’s, whilst relevant, was not addressed in this context. Indeed, the Secretary of State (paragraph 15) acknowledged that the claimant and his family had some connections with the locality, having travelled and camped in the general area for several years.

[19]There was no dispute between the Secretary of State and the inspector as to the weight which should be attached to the educational needs of the claimant’s youngest child. Both agreed that it would not amount to very special circumstances in its own right. “Finding Alternative Accommodation”

[20]The Secretary of State agreed with the inspector’s conclusion that there was little likelihood of any sites becoming available in the short term in the Sevenoaks district (see paragraph 16 of the DL). But then, in a passage which is at the heart of this appeal, he went on to state:

“There is evidence of your client having made enquiries at the nearby Polhill site prior to moving to the appeal site, but there is no clear evidence of any other efforts your client may have made to find alternative sites. Paragraph 20 of Circular 1/94 encourages gypsies to consult local planning authorities prior to purchasing land for encampments and in this case there is no evidence that your client sought to discuss the merits of the appeal site or any other with the Council before purchase. If this consultation had been carried out, the planning status of the site would have been made known to your client and would have provided a good indication of the suitability or otherwise of the appeal site in meeting his needs. Therefore, although your client argues that the lack of a proper quantitative assessment of need means that there will be little likelihood that guidance will be available in the development plan, the Secretary of States concludes that the lack of evidence of a search for other sites weighs against your client’s case.”

It is clear from the inspector’s conclusion that, notwithstanding criticism which had been levelled by the local planning authority and the Parish Council at the conduct of the claimant, the inspector did not conclude that there had been a lack of evidence in connection with searches for other sites and he held no such factor against the claimant’s case. On the contrary, the inspector held that the lack of alternative sites available to the claimant was one of the factors contributing to the conclusion that very special circumstances existed. Respectively the planning authority had submitted:

“They have a connection with Sevenoaks, having pitched caravans in the area on many occasions, but they also have similar connections with numerous other areas. They have not put their names on any local authority waiting list for sites, or looked for land in other parts of the County where land-use policies are less restrictive. They made no serious enquiries about any other sites before purchasing the appeal site” (paragraph 57). And the Parish Council submitted: “The extent of any general need for additional provision and the apparent absence of available pitches on authorised sites are however immaterial in this case, because the appellant has never shown interest in becoming a tenant on a public site and has never added his name to the waiting list. He and his family have occupied unauthorised sites in Bromley, several different towns in Kent, and in Essex; they have no legitimate, long-term connections with Sevenoaks and there is no obligation on the District Council to find accommodation for them. Whilst it is true that any site in Sevenoaks would probably have to be in the Green Belt, that is not the case in other parts of Kent, where land is not only free of Green Belt constraints but also far less expensive than in Sevenoaks (paragraph 69)”

. This case was rejected by the inspector. He recognised the logic, but concluded “there is no likelihood of any such sites becoming available in the short term” (paragraph 99).

[21]Although it is stated by the Secretary of State that “the lack of evidence of a search for other sites” was a matter to be weighed against the claimant’s case, nonetheless in paragraph 17, which contains the essential balancing exercise which he carried out, that element is not included and no further reference is made to it. In paragraph 17 the conclusion is as follows:

“The Secretary of State has therefore balanced the need for your client and his family to have a settled residential base so that Bobby’s educational requirements can be met, the acknowledged need for more gypsy caravan sites in the area and the inspector’s assessment of the fairly low level of actual harm the appeal scheme causes against the identified conflict with national and local green belt and landscape policies and the degree of harm to the objectives of the green belt and to the appearance of the countryside. He has very carefully considered the inspector’s conclusions as regard the low level of harm to the openness of the Green Belt, but disagrees with the amount of weight he has given to the impact of the development on the immediate area of the valley bottom and the fact that its visibility from the London Road and the golf course to the south is restricted. The Secretary of State places less weight than the inspector on this aspect of the harm caused to the openness of the green belt and greater weight on the findings that the development on the site is clearly visible from the hillside to the north and results in a change in the character of the area from open rural to a more suburban appearance and that there is a resulting loss of openness.”

There is a ground of challenge to the legitimacy of this conclusion based upon the failure of the Secretary of State to carry out a site visit, but it has not been suggested that this conclusion was other than the result of the exercise of a planning judgment on the material which was before him. In the next paragraph of the DL (paragraph 18) the Secretary of State rejects the idea that conditions could reduce the harm and concludes in paragraph 19 as follows:

“Accordingly the Secretary of State concludes that the arguments put forward on behalf of your client do not, in the particular circumstances of this case, amount to the very special circumstances sufficient to clearly outweigh the harm to the green belt by reason of inappropriateness and the other harm identified so as to justify the grant of planning permission.”

[22]The claimant submits that the conclusion reached by the Secretary of State that there was no “clear evidence of any other efforts” on the part of the claimant to find alternative sites is unfair as well as being unjustified having regard to the material which was before the inspector. For similar reasons, he challenges the conclusion that “there was a lack of evidence of a search for other sites”. The claimant submitted that the Secretary of State could only have reached those conclusions by disregarding evidence which had been given. Mr Morshead, counsel for the Secretary of State, emphasised that the DL had not said that there was no evidence, but simply that the evidence was not “clear” and, as a result, there was “a lack of evidence”. He accepted the court’s suggestion that the use of the word “clear” could be regarded as referring to the cogency of the evidence rather than its clarity. He submitted that it was legitimate for the Secretary of State to consider the weight or cogency of the evidence in this regard because the burden was on the claimant to demonstrate, when seeking to justify a development within the Green Belt, that he had taken reasonable steps to find an alternative site which could avoid development within the Green Belt or to the particular part of the Green Belt in question. It was submitted that the burden derived from the fundamental point in cases where unauthorised development had taken place in the Green Belt, namely the need to show very special circumstances for it to be authorised. Further, he submitted that the availability of alternative sites was always a material consideration in cases such as this and, that being the case, evidence in this regard was required from the person seeking permission. Next it was submitted that support for the existence of such a burden could be derived from Circular 1/94.

[23]Experience in the courts shows that evidential issues in connection with cases normally fall to be determined, not so much by reference to the question as to which party had the burden of proof, but upon the weight and impact of the evidence which was before the relevant court or tribunal. I accept, without hesitation, that the overall burden is upon an applicant for permission for planning development in the Green Belt to establish that very special circumstances exist. But, confining oneself to gypsy cases, it is obvious from the contents of Circular 1/94 and the existence of advice to local planning authorities that invaluable data, which will enable a conclusion to be reached on the availability of alternative sites, will come not from the applicant for permission, but from the local planning authority, national statistics, and statistics in connection with planning applications and so forth in the area in question.

[24]Mr Morshead accepted that the principal underlying purpose in looking to an applicant for evidence of searches which he has carried out for alternative sites, is to add to the material on that topic, rather than it being necessary for an applicant to demonstrate that he has gone to the trouble of trying to find somewhere else. He was not prepared to eschew the presence of a disciplinary or good order factor being present in the requirement, but I regarded this as a secondary aspect of the argument. When pressed to explain what purpose would have been served by the applicant, travelling through the Sevenoaks District and the County of Kent in order to find alternative sites, Mr Morshead submitted that, whilst there would be no point in connection with authorised sites, it would go to the question as to whether any private sites outside the Green Belt were available within the county. When pressed further, particularly by reference to the inspector’s conclusions that there was “no likelihood of sites becoming available in the short term”, he submitted that if that was not, on the material available, likely to add anything of significance to the evidence, then it was incumbent upon the applicant to search for any site, private or authorised, outside the county of Kent and, in particular, in places where he had connections.

[25]As the argument developed, I became more and more persuaded that Mr Morshead’s submissions pressed for too much and it became clear to me that they were driven by the difficulties which the conclusion to which the Secretary of State had come, gave rise, which was expressed as an evidential rather than a principled conclusion. The reference by the Secretary of State to a visit to the Polhill site came from paragraph 37 of the inspector’s report, which paragraph was a recital of the claimant’s evidence. The full passage is as follows:

“They are not on any official waiting list but before buying the appeal site made personal enquiries at Polhill and elsewhere”

. In the circumstances, the reference by the inspector to “elsewhere” has some significance.

[26]Further, included within the recital by the inspector of the claimant’s case is paragraph 38. Close attention to the terms of this paragraph indicates that it comes close to being the conclusions of the inspector on the documentary evidence rather than a mere recital of submissions. It is to be noted that in his conclusion on the availability of alternative sites (paragraph 99 of the Report), the inspector refers twice to this paragraph. It is clear to me that the inspector was concentrating, in the first place, upon the availability of alternative sites within the district of Sevenoaks, although the paragraph begins with reference to the claimant’s case that it had been conceded that:

“there are no vacant pitches on public or private sites in Sevenoaks or in Kent as a whole to which the appellant could move”

. The paragraph continues:

“Any site which the appellant might identify in the rural parts of the District would be in the Green Belt, and therefore subject to the same objections as the appeal site. It is noteworthy that, over the past eighteen months, permission has been refused for five gypsy sites in Sevenoaks, and when asked at the inquiry the Council were unable to provide evidence of planning permission for gypsy accommodation having been granted since 1996. There is no evidence that the Council have given, or are able to give, any assistance or guidance to a gypsy seeking a site, beyond the criteria set out in the Local Plan. Any land in a built-up area, even if a suitable site could be identified, would be beyond the means of gypsies. The appellant investigated other sites before buying the present site, but they were far too expensive, costing between £150,000 and £200,000.”

[27]In the light of that paragraph and the position which was accepted by the local planning authority and the Parish Council, there is force in the submission that if one is considering the availability of sites within the Sevenoaks District Council area, it is difficult to see what could possibly have been achieved had the claimant spent weeks attempting to find a site in the Sevenoaks District. If, as Mr Morshead submitted, the Secretary of State was entitled to look to see what efforts there had been to obtain sites in non-Green Belt areas in or outside the Sevenoaks district, namely in a built-up area, he appears to have paid no regard to the material which influenced the inspector, namely that such sites were likely to be beyond the means of gypsies but, more pertinently, that the claimant had investigated other sites before buying the present site, but they were far too expensive. To this, Mr Morshead responded that this was the evidence from the claimant which the Secretary of State was entitled to regard as not being “clear evidence”.

[28]Next Mr Morshead drew attention to paragraph 57 of the inspector’s report which recited the Council’s case to the following effect:

“They have a connection with Sevenoaks, having pitched caravans in the area on many occasions, but they also have similar connections with numerous other areas. They have not put their names on any local authority waiting list for sites, or looked for land in other parts of the County where land-use policies are less restrictive. They made no serious enquiries about any other sites before purchasing the appeal site.”

Whilst there was no dispute that they had not put their names on any local authority waiting lists, the inspector made no finding in connection with the contention that they had not looked for land in other parts of the county where land-use policies were less restrictive, nor had he made any finding about the seriousness of the enquiries (or lack of seriousness) at sites (including Polhill) before purchasing the appeal site. Further, the difficulty about attributing weight to this part of the record is that the inspector made no finding about it, and because significance has to be attached to his conclusion that there “was a lack of alternative sites”, and that there was no likelihood of any sites becoming available in the short term, and that the applicant was in need of a site and that there was no obvious reason why it should or should not be met at the appeal site or in Sevenoaks rather than elsewhere. The Secretary of State came to no conclusion in this regard and did not express any difference with the inspector in connection with these conclusions other than the conclusion that there was a “lack of evidence” of a search and “no clear evidence” of any “other efforts”. Without a conclusion by the Secretary of State as to what such a search or efforts would have achieved, assuming a failure on the part of the claimant, the conclusion is without consequence.

Circular 1/94

[29]The Circular comprises guidance on the planning aspects of sites for caravans which provide accommodation for gypsies. It is issued to local planning authorities. It is not issued directly to gypsies, but no doubt it is available to them on request and in the usual course, through gypsy organisations, gypsies are likely to become familiar with its contents. Paragraph 20 of the Circular does not “encourage gypsies to consult local planning authorities prior to purchasing land”, as the Secretary of State states in the DL. Paragraph 20 of the Circular states, in its material part, in its direction to local planning authorities:

“Wherever possible, gypsies should be encouraged to consult authorities on planning matters before buying land on which they intend to camp and for which planning permission would be required.”

Further, had it been the position that the Circular could be interpreted as giving rise to an obligation or burden upon gypsies to consult with local planning authorities, then, so far as this case is concerned, the inspector concluded: “There is no evidence that the Council have given or are able to give any assistance or guidance to a gypsy seeking a site beyond the criteria set out in the Local Plan”.

[30]In my judgment no support can be gleaned from the guidance for Mr Morshead’s submission that there is a specific evidential burden upon gypsies to put evidence before an inspector in connection with their searches for alternative sites. Paragraph 21 of the Circular, by its terms, suggests that the availability of sites outside the area of the instant planning district and the commonplace fact that a gypsy is likely to have connections outside the instant planning district is not likely to be a weighty factor to the decision whether to grant planning permission. Paragraph 21 states:

“Authorities should recognise that they may receive applications from gypsies without local connections which could not reasonably have been foreseen in their development plan policies. Authorities should not refuse private applications on the grounds that they consider public provision in the area to be adequate, or because alternative accommodation is available elsewhere on the authorities’ own sites”

Conclusions on Ground 1

[31]In my judgment, where a gypsy seeks to obtain permission to develop a site in the Green Belt, the decision as to whether there are very special circumstances for permitting the development in the Green Belt will require consideration to be given to the evidence of the availability of an alternative site in the relevant planning district in which the application has been made. Obviously evidence pointing to the availability of a site outside the Green Belt, but within the planning district, could amount to a weighty factor against the grant of permission.

[32]The best evidence likely to be available in connection with alternative sites in the relevant planning district will be from statistics and information available to the local planning authority. The purpose of the guidance to local planning authorities in Circular 1/94 is to secure that such evidence is available. In this case, the inspector must be taken to have concluded that searches by the claimant in the Sevenoaks district would have added nothing to the available data or information, otherwise he would not have concluded that “there is no obvious reason why it …..should not be met”. In my judgment the firm conclusion of the inspector was there were no alternative sites available. I am not persuaded that where the evidence establishes that no alternative sites are available, the failure of a gypsy to search is relevant. Conversely the failure of a gypsy to search may mean a fact finder is unable to conclude that there are no alternative sites.

[33]I am not to be taken as holding that evidence as to availability outside the Green Belt and outside the district in which the application is made will not generally be relevant. It will be, but then personal considerations in respect of the family will also be relevant. In this case there was evidence of unmet need, not simply in the District but also the County of Kent, which the inspector accepted, and there was some evidence that the claimant had looked for other sites but found them too expensive. The Secretary of State’s conclusion that there was no “clear evidence” is, in my judgment, not to the point. The suggested lack of clarity does not appear to have given rise to any difficulty on the part of the inspector who had the responsibility for investigating the facts and had concluded there were no “alternative sites available” (paragraph 102). Whilst the District Council’s case was that the claimant could have done more, there is no reason to suppose that even if he had, the position would have been any different. At one stage Mr Morshead submitted by reference to Circular 1/94 that it could be said that, according to policy, it was incumbent upon gypsies to seek out and buy their own sites. In my judgment the Circular does not support that contention. Paragraph 4 states:

“The Government recognises that many gypsies would prefer to find and buy their own sites to develop and manage. More private sites should release pitches on local authority sites for gypsies most in need of public provision.”

I do not see that as supporting the thrust of the submission that gypsies should travel round extensively outside the area where they have applied to remain and over an area covered by their gypsy circuit in order to provide material going to the non-availability of other sites. Such an open-ended expression of the burden upon an applicant and, in particular, a gypsy, in my judgment, would be capable of being oppressive and unfair because of its lack of clarity. No gypsy would know the extent to which he was bound to carry out searches for alternative sites. It would always be open to an inspector or to the Secretary of State to conclude that he had not done enough. In my judgment the use of the word “clear” begs the question as to what clarity it is said was required, what it was that the evidence failed to establish, and for what purpose greater clarity was necessary.

[34]In summary, it appears to me that the Secretary of State has come to a conclusion about “a lack of evidence” in the case which gave rise to no difficulty for the inspector and upon which the inspector came to conclusions of fact. Secondly, he appears to have paid regard to only part of the evidence, ignoring material which suggested that there had been searches at Polhill and elsewhere, as well as the claimant’s evidence in connection with alternative sites which had proved too expensive. Further, he regarded the Circular as a source of an obligation, the non-fulfilment of which the Secretary of State held against the claimant, namely the fact that he had not sought advice from the planning authorities, where it is plain the inspector had concluded that no advice or assistance would have been forthcoming save that which is in the Local Plan. Further, he concluded that the lack of or lack of cogent evidence from the claimant in connection with his searches for other sites weighed against the claimant’s case, but he has not indicated how he weighed it against the claimant. It does not appear in the balancing exercise described in paragraph 17 of the DL.

[35]The Secretary of State departed from the inspector’s assessment of harm to the Green Belt. Among the factors which the inspector found amounted to very special circumstances, he has, like the inspector, placed the unmet need for accommodation and the authority’s failure to address that need in the scales on the claimant’s side. But, critically, he has not disagreed with the inspector’s conclusion on the lack of alternative sites, limiting himself to an observation on the clarity or lack of the evidence which, on its own, cannot be regarded as having any force. In my judgment, if, on a true reading of the Secretary of State’s conclusion, he is to be taken as having rejected the finding of the lack of available sites simply because of the lack of clear evidence of searches by the claimant, he plainly failed to take account of all the evidence.

Other Grounds of Challenge

[36]In essence, Mr Masters raised two other grounds. The first in connection with the rejection by the Secretary of State of the option of temporary planning permission. The next in connection with the difference in planning judgment reached by the Secretary of State as far as the harm to the Green Belt was concerned. He submitted it was not open to the Secretary of State to depart from the inspector’s conclusion, where the inspector had visited the site but the Secretary of State had not. In the circumstances, he submitted, there was no proper basis for the Secretary of State to reach a different conclusion on the harm to the Green Belt.

[37]In paragraph 103 of his report, the inspector stated:

“… a practical problem would arise in this case if permission were granted for a limited period, because in that event it would in my view be unreasonable to impose a condition requiring the appellant to spend several thousand pounds on erecting a security fence in place of the existing chain-link fence on the railway boundary. For these reasons I consider that the duration of any permission granted should not be limited.”

The Secretary of State, in essence, accepted this conclusion and also decided that a limited period condition would not be appropriate in this case. Contrary to the submission of Mr Masters’, in my judgment, the Secretary of State identified the reasons for his conclusion adequately and, since he was agreeing with the inspector, no more was called for.

[38]As to the requirement for a site visit before departing from the view of the inspector as to the planning harm to the Green Belt, the Secretary of State had available the detailed description which the inspector’s site visit had enabled him to draw up. There were also photographs. He did not depart from the description of the site nor in any material particular from the views of the site provided by the inspector. The Secretary of State was entitled, in my judgment, to come to his own conclusion as to the weight which should be attached to that material and to reach his own conclusion as to how far the Green Belt would be harmed.

Relief

[39]For the reasons which I have set out above, I have concluded that the Secretary of State’s decision must be quashed. I shall need to have submissions from counsel as to the precise terms of any further relief which should be granted.