Connors & Ors v Secretary of State for Communities and Local Government & Ors [2014] EWHC 2358 (Admin)

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

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

“(5) On any application under this section the High Court— (a) may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings; (b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.” (a) may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings; (b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”

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

“79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence. “80. Green Belt serves five purposes: • to check the unrestricted sprawl of large built-up areas; • to prevent neighbouring towns merging into one another; • to assist in safeguarding the countryside from encroachment; • to preserve the setting and special character of historic towns; and • to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.” • to check the unrestricted sprawl of large built-up areas; • to prevent neighbouring towns merging into one another; • to assist in safeguarding the countryside from encroachment; • to preserve the setting and special character of historic towns; and • to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.”

“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. “88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”

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

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

“14. Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development. 15. Green Belt boundaries should be altered only in exceptional circumstances. If a local planning authority wishes to make an exceptional limited alteration to the defined Green Belt boundary (which might be to accommodate a site inset within the Green Belt) to meet a specific, identified need for a traveller site, it should do so only through the plan-making process and not in response to a planning application. If land is removed from the Green Belt in this way, it should be specifically allocated in the development plan as a traveller site only.”

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

“Our policy document, “Planning Policy for Traveller Sites”, was issued in March 2012. It makes it clear that both temporary and permanent Traveller sites are inappropriate development in the green belt and that planning decisions should protect green belt land from such inappropriate development. As set out in that document and in March 2012’s national planning policy framework, inappropriate development in the green belt should not be approved except in very special circumstances. Having considered recent planning decisions by councils and the planning inspectorate, it has become apparent that, in some cases, the green belt is not always being given the sufficient protection that was the explicit policy intent of Ministers. The Secretary of State wishes to make clear that, in considering planning applications, although each case will depend on its facts, he considers that the single issue of unmet demand, whether for Traveller sites or for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the “very special circumstances” justifying inappropriate development in the green belt. The Secretary of State wishes to give particular scrutiny to Traveller site appeals in the green belt, so that he can consider the extent to which “Planning Policy for Traveller Sites” is meeting this Government’s clear policy intentions. To this end he is hereby revising the appeal recovery criteria issued on 30 June 2008 and will consider for recovery appeals involving traveller sites in the green belt. For the avoidance of doubt, this does not mean that all such appeals will be recovered, but that the Secretary of State will likely recover a number of appeals in order to test the relevant policies at national level. The Secretary of State will apply this criteria for a period of six months, after which it will be reviewed.”

“The Government’s planning policy is clear that both temporary and permanent traveller sites are inappropriate development in the green belt and that planning decisions should protect green-belt land from such inappropriate development. I also noted the Secretary of State’s policy position that unmet need, whether for traveller sites or for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the “very special circumstances” justifying inappropriate development in the green belt. The Secretary of State wishes to re-emphasise this policy point to both local planning authorities and planning inspectors as a material consideration in their planning decisions. That statement revised the appeals recovery criteria by stating that, for a period of six months, the Secretary of State would consider for recovery appeals involving traveller sites in the green belt, after which the position would be reviewed. The Secretary of State remains concerned about the extent to which planning appeal decisions are meeting the Government’s clear policy intentions, particularly as to whether sufficient weight is being given to the importance of green-belt protection. Therefore, he intends to continue to consider for recovery appeals involving traveller sites in the green belt. Moreover, Ministers are considering the case for further improvements to both planning policy and practice guidance to strengthen green belt protection in this regard. We also want to consider the case for changes to the planning definition of “travellers” to reflect whether it should only refer to those who actually travel and have a mobile or transitory lifestyle. We are open to representations on these matters and will be launching a consultation in due course.”

“Having established the above, and bearing in mind the matters agreed between the parties, I have identified the following main considerations: • The effect of the proposal in the openness of the Green Belt and the purposes of including land within it. • Whether the site is suitable for the proposed use, in terms of the noise from the adjacent motorway. • Other considerations which favour the proposal including the general need for traveller sites, the accommodation needs of the proposed occupiers and their personal circumstances. • Whether the harm to the Green Belt through inappropriateness, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development. ” • The effect of the proposal in the openness of the Green Belt and the purposes of including land within it. • Whether the site is suitable for the proposed use, in terms of the noise from the adjacent motorway. • Other considerations which favour the proposal including the general need for traveller sites, the accommodation needs of the proposed occupiers and their personal circumstances. • Whether the harm to the Green Belt through inappropriateness, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development. ”

“43. One of the essential characteristics of Green Belt’s is their openness. The site would accommodate the proposed six mobile homes, together with touring caravans, parked vehicles and the ancillary domestic structures and paraphernalia which might reasonably be expected. It is likely that there would also be internal boundary treatments. The result would be a significant loss of openness. 44. One of the purposes of the Green Belt is to assist in safeguarding the countryside from encroachment. Although there are some other buildings and structures in the vicinity the area is broadly rural, and the caravans and the accoutrements of a residential gypsy and traveller site would encroach into the countryside to the further detriment of the Green Belt. 45. The Framework provides that substantial weight should be given to any harm to the Green Belt and by definition this must apply to inappropriate development. In this case I find that there would be substantial harm to the Green Belt by reason of inappropriateness and additional harm both through loss of openness and encroachment. The proposal therefore conflicts with national policy and [local plan] policy CO1. These matters are important material considerations, which were not contested by the appellant, and reflect the issues dealt with by the previous appeal decision. For this reason this section of the report is brief, but this does not imply that it has correspondingly limited weight. Overall this is a consideration which weighs substantially against the appeal.”

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

“71. The educational needs of the children are put forward as giving support to the proposal. The potential occupiers of the site include 3 children of school age – John and Mary Robb (aged 10 and 6) and Margaret Maloney (aged 6). There are 5 younger children. Of the school age children, it was stated that two have occasional tutors but that the appellant was not aware of any educational provision for the remaining school age child - it is a reasonable assumption that the appellant would know if any education was being provided. The benefit of having a settled base from which education services can be accessed – both for those children currently of school ages and those who have yet to attain that age – is an important factor to be taken into account in assessing accommodation needs and this weighs significantly in favour of the proposal. 72. There is no suggestion from any party that the proposed occupier’s needs can be met by any other alternative site. The appellant stated that a number of the proposed occupiers have to resort to camping by the roadside – although the evidence is also that some station their touring caravans within the curtilage of the appellant’s house from time to time. The planning status of this activity is not clear, but it has clearly happened for some time without action from the Council. Overall, it does not seem likely that the occupiers would have to entirely resort to the roadside, given the apparent availability of the land around the appellant’s house – although this clearly does not provide a permanent base for mobile homes.”

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

“15. The Secretary of State notes that some of the proposed occupiers station their touring caravans within the curtilage of the appellant’s house from time to time; and he agrees with the Inspector that it does not seem likely that the occupiers would have to entirely resort to the roadside, given the apparent availability of the land around the appellant’s house. 16. The Secretary of State has carefully considered the Inspector’s conclusion that, for the reasons in [paragraph 69 to 73 of the inspector’s report], the lack of a permanent settled site for the proposed occupiers, especially to facilitate the education of the children, weighs significantly in favour of the proposal. As it does not seem likely that the occupiers would have to entirely resort to the roadside if the appeal were refused, he attributes less weight than the Inspector to the personal circumstances of the proposal. However, he considers that they should be afforded some weight in the determination of the appeal. Although he considers the best interests of the children to be a primary consideration, in the circumstances of the case, as none of the children are attending school, notwithstanding that two have occasional tutors, and there does not appear to be a compelling reason for them to live on this particular site, he considers that the needs of the children should only carry some weight.”

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

“23. In terms of interference with the appellant’s rights under Article 8 of the European Convention on Human Rights, the Secretary of State considers that these rights are qualified. He considers that it is his role as planning decision-taker to ensure that any interference with these rights is in accordance with the law and is necessary in a democratic society, applying the principle of proportionality. His decision to dismiss the appeal would not result in the direct loss of any of the proposed occupier’s homes, although it may force the families to continue a generally itinerant lifestyle (even allowing for their use of the appellant’s curtilage as temporary accommodation), and, disagreeing with the Inspector’s conclusion, he takes the view that in this case the harm to the Green Belt and other harm is such that dismissal of this appeal is a necessary and proportionate response. 24. The Secretary of State has considered the Inspector’s comments about the Equality Act 2010 and the fact that the proposed occupants are Irish Gypsies (IR80), a protected group for the purposes of that Act. In making his decision, the Secretary of State has had due regard to the requirements of the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality of opportunity and foster good relations between those with protected characteristics and others. Following careful consideration of these matters he concludes that any impact of the dismissal of this appeal is justified and proportionate.”

“i. the impact of the development on the openness of the Green Belt and on the purposes of including land within it; ii. whether the development would cause harm to the character and appearance of the area having regard to its location within the AGLV and its proximity to the AONB; iii. whether the harm to the Green Belt by reason of inappropriateness and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.”

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

“85. Neither Patrick and Martina nor Patrick, Ann and their children have a settled base on which to reside. They spend time travelling in England and Ireland and Patrick and Ann stay on another Family’s pitch outside the Borough when that family are away travelling. The Council accepts that there are currently no alternative available sites for the extended family to reside on if planning permission is refused for this site. This provides significant weight in favour of the appeal for these potential occupants. 86. Eddie Connors does not travel due to ill health. He currently lives in a flat some 30 minutes drive away from the appeal site and often needs to spend time in hospital. Elizabeth Connors (Miley, Patrick, Ann and Eddie’s mother) also lives in a flat next door to Eddie. Elizabeth’s care needs do not appear to be particularly out of the ordinary for an aging relative. Furthermore, they do not provide any direct weight in favour of the appeal, as she is not proposing to move into one of the mobiles currently under consideration. However, I also heard that Ann currently provides much of the care for Elizabeth, with Miley taking over when Ann is travelling. One of the reasons for the proposal in this appeal is to enable the extended family to live together as a group where they are able to provide the necessary care for their more dependant relatives. This is part of the gypsy way of life which [the Travellers Site Policy] seeks to facilitate and this provides some weight in favour of this appeal. 87. [The Travellers Site Policy] also recognises that settled accommodation can provide benefits in terms of access to health, welfare and employment infrastructure and this benefit would apply to Patrick and Martina and Patrick and Ann, together with their daughter and son (who is still a minor, even though this was not put forward by the appellant in support of the appeal). This carries a small amount of weight in favour of the appeal.”

“91. The Framework advises that inappropriate development should not be approved except in very special circumstances. These will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. The harm caused by reason of inappropriateness and the moderate impact on openness carry substantial weight against the proposal. The additional harm in terms of its impact on the character and appearance of the area adds some further weight against the proposal in the short to medium term. Over time, and providing planting is implemented and maintained, the harm caused by this factor would reduce. The impact on the privacy of occupants of the mobile homes to the rear adds a very limited amount of additional weight against the development. 92. In favour of the appeal is the considerable unmet need for sites within the Borough as well as the national and regional need. This carries significant weight in favour of the development as does the long standing failure of the Council to meet that need. The acknowledged lack of alternative available sites for the extended family to reside on provides significant weight in favour of the appeal. Some weight is given to enabling the extended family to live together and care for each other as a group. Enabling those who do not currently have a settled base to access health, welfare and employment infrastructure also carries a small amount of weight in favour of the appeal. 93. Dismissing the appeal would not result in the direct loss of any of the proposed occupiers’ homes. However, the judgement in Rafferty & Jones v SSCLG & North Somerset CoA EWCA Civ 809 [2009] held that Article 8 Rights are capable of being infringed even if the caravans are not already on the land. Dismissing the appeal will force those families without a permanent base to continue their itinerant lifestyles. This would represent an interference with their home and family life and this adds further weight in favour of the appeal. Having regard to the balance of considerations outlined above and the effect of the proposal upon the public interest, I conclude that dismissal of the appeal would have a disproportionate effect upon the rights of those families without a permanent base under Article 8 of the European Convention on Human Rights. The interference would be less in terms of Eddie, as he already has settled accommodation. 94. The Equality Act 2010 places a Single Equality Duty on decision makers in respect of planning permission. The proposed occupants are Irish Gypsies and there is a duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between different racial groups. The requirements of this Single Equality Duty have been followed in considering this appeal. Dismissal of the appeal would perpetuate the disadvantage suffered by the proposed occupants due to the absence of suitable, available alternative sites to accommodate the family group. This would reduce equality of opportunity and the fostering of good relations. 95. In the circumstances set out above, the harm by reason of inappropriateness and the additional harm identified is clearly outweighed by the totality of the other considerations. On balance, considering the case as a whole, I conclude that very special circumstances do exist so as to justify this inappropriate development in the Green Belt. The proposal would not therefore conflict with [local plan] policy CO1.”

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

“19. The Secretary of State notes that the Council accepts that there are currently no alternative available sites for the extended family to reside on if planning permission is refused for this site. He also notes that those individuals named by the Inspector do not have a settled base on which to reside. The Secretary of State agrees with the Inspector that this provides significant weight in favour of the appeal in respect of these potential occupants. 20. The Secretary of State notes that one of the reasons for the proposal is to enable the extended family to live together as a group where they are able to provide the necessary care for their more dependant relatives, and agrees with the Inspector that this is part of the gypsy way of life which the PPTS seeks to facilitate. However, the Secretary of State has also taken into account that there is no detailed supporting evidence before him regarding the care requirements of Elizabeth Connors, nor is there evidence which makes it clear to the Secretary of State how allowing the appeal for this particular site would provide significant benefits in relation to the provision of such care given that Elizabeth Connors is not a proposed site occupant herself. Overall he gives this factor limited weight in favour of this appeal. 21. The Secretary of State has carefully considered the Inspector’s comments at [paragraph 87 of the inspector’s report]. He notes that one of the proposed occupants is a minor. Notwithstanding that the appellant did not put this forward in support of the appeal, or the absence of evidence before him in relation to the education and health needs of this child, the Secretary of State has taken into account as a primary consideration to his decision the probability that a settled base would provide the best opportunity to attend school and to register with a doctor. Overall on this consideration, the Secretary of State agrees with the Inspector that the benefits that settled accommodation can provide in terms of access to health, welfare and employment infrastructure carries a small amount of weight in favour of the appeal for the proposed occupants ….”

“27. Weighing against such a temporary permission, the Secretary of State attaches substantial weight to the harm to the GB in respect of the inappropriateness of the proposals, the harm to openness and to the GB purpose to assist in the safeguarding of the countryside from encroachment. However, setting aside the harm from the loss of existing vegetation to the south of the site, he considers that the harm that would result from a grant of permanent permission, as summarised at paragraph 23 above, would not be so great given that the proposal would be of temporary duration. In respect of the harm from the loss of existing vegetation to the south of the site, the Secretary of State considers that the initial harm resulting from a permanent permission would be no less significant for a temporary permission for a three year period, but that there would be less opportunity for the longer term benefits of the proposed planting mitigation to have an impact. 28. In conclusion, the Secretary of State considers that the factors he has identified in favour of a grant of temporary permission, together, do not clearly outweigh the substantial harm to the GB and other harm he has identified, and he concludes that very special circumstances do not exist to justify a grant of planning permission on a temporary basis.”

“29. In terms of interference with the appellants’ rights under Article 8 of the European Convention on Human Rights, the Secretary of State does not disagree with the Inspector that these rights are capable of being infringed even if the caravans are not already on the land, but he also considers that these rights are qualified. The Secretary of State considers that it is his role as planning decision-taker to ensure that any interference with these rights is in accordance with the law and is necessary in a democratic society, applying the principle of proportionality. He agrees with the Inspector that dismissing the appeal will force those families without a permanent base to continue their itinerant lifestyle and that this would represent an interference with their home and family life, and that the interference would be less in terms of Eddie Connors who has settled accommodation. The Secretary of State takes the view that in this case the harm to the GB and other harm is such that dismissal of this appeal is a necessary and proportionate response. 30. In terms of the Equality Act 2010, the Secretary of State has had regard to the fact that the proposed occupants are Irish Gypsies, a protected group under that Act, and he agrees with the Inspector that there is a duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good relations between different racial groups. The Secretary of State has had full regard to this duty in reaching his decision, but considers that, such is the level of harm that he has identified in this case, the impact of dismissing the appeal is justified and proportionate.”

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

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

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

“50. The appeal development and s78 proposal both amount to inappropriate development in the GB and I give substantial weight to the harm caused by this. I also give substantial weight to the harm caused by encroachment into the GB and the reduction of openness, even though the actual harm may be relatively limited. 51. I have found that the appeal development and s78 proposal would not result in any material harm to the character and appearance for the area and that the Council’s concerns about noise from the A25 and railway line could be addressed by appropriate conditions. 52. Insofar as other considerations are concerned, I have found that the Council cannot demonstrate a five year supply of sites, even by its own reckoning, and that, in all likelihood, it has under-estimated the level of unmet need. I give significant weight to this matter. 53. I have also found that the Council’s ‘one-size-fits-all’ approach to meeting the need for pitches in the foreseeable future, which is based on the 17 new pitches at Coldharbour Lane being made available to local families on a first preference basis, does not accord with the policies and advice in both the Traveller policy and The Framework which envisage a degree of choice especially when it comes to the matter of tenure. No doubt some families will depend on public pitches but there will be others including the appellant and her family who want and are able to develop their own sites. I afford this matter, and the fact that the Coldharbour Lane site is not suitable for the appellant and her family to relocate to, significant weight. 54. Given that there is no available, suitable alternative site for the appellant and her family to move to they would, in all likelihood, be forced onto the road if required to vacate the appeal site, with all the attendant problems this would bring, including making it difficult for the family to access local doctors and schools. In this regard I heard that the appellant’s husband is seriously ill and that there are school age children living on the appeal site whose education would be disrupted if they were forced to vacate a site the family has been living on since 2007. With respect to the children’s continuing education, the courts have held that this is a matter which should be given substantial weight. 55. Overall, when carrying out the required balancing exercise, I conclude that other considerations clearly outweigh the harm to the GB and that very special circumstances exist to justify the development as carried out and the s78 appeal proposal. Therefore, I recommend that the appeals should be allowed and that planning permission is granted both for the development already carried out and the s78 appeal scheme. 56. I have considered whether any such permission should be granted on a temporary basis but given the fact that the appellant and her family have been living on the site for six years, including a two year period when they benefited from temporary planning permission, I have discarded this approach in favour of recommending that permanent permission be granted. However, in view of the weight I have given to the appellant’s personal circumstances, I suggest imposing a condition limiting occupancy of the site to the appellant and her family. Other conditions suggested by the Council in the event that one or both appeals are successful are considered below. 57. In my judgment, the protection of the public interest cannot be achieved by means which would be less interfering of the rights of the appellant and her family. They are proportionate and necessary in the circumstances and would not result in a violation of their rights under Article 8 of the European Convention on Human Rights as incorporated into UK Law by the Human Rights Act 1998. I am also satisfied that permission in the terms described would comply with the Public Sector Equality duty contained in the Equality Act 2010.”

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

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

“17. The Secretary of State agrees with the Inspector that the development represents inappropriate development in the GB and that he gives substantial weight to this harm and to other harm in terms of encroachment into the GB and reduction of openness. 18. He has gone on to consider the Inspector’s reasoning with regard to need and he agrees that the Council cannot demonstrate a five year supply of sites and he gives significant weight to this matter. However, he does not accept the Inspector’s conclusion that the Scale is underestimated. As indicated in paragraph 12 above, the question of need has not been subjected to detailed scrutiny through the [development plan] process and he therefore considers the weight in favour of this matter is qualified. Furthermore, with regard to the suitability of an alternative site the Secretary of State considers for the reasons set out in paragraph 14 that they have had the benefit of residing on the site with the benefit of a temporary consent on the basis that pitches would become available at the extended Coldharbour Lane KCC owned site and he has seen no evidence to suggest that they have liaised with the Council, prior to these appeals, to seek an alternative suitable site on the basis that they had no intention of locating to the KCC site. Accordingly he gives the availability of an alternative site less weight than the Inspector. 19. The Secretary of State has therefore gone on to carefully consider the balance of the needs of the appellant and her family against the need to protect the Green Belt. He agrees with the Inspector that the unmet need for sites and the personal circumstances of the appellant and her family, including the best interests of the children, carry substantial weight in favour of the proposal. However, unlike the Inspector, he does not consider this, in itself, is sufficient to outweigh the harm to the Green Belt and other harms to comprise the very special circumstances necessary to justify the appeal proposal. He considers that, even when combined with the personal circumstances of the proposed occupants and the best interests of the children, which he considers are a primary consideration in this case, the very special circumstances necessary to justify the development do not arise and therefore permanent planning permission is not justified.”

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

“21. In coming to this conclusion, the Secretary of State acknowledges that the impact of this decision would interfere with the occupiers’ home and family life and the peaceful enjoyment of their property, which are protected by Article 8 and Article 1 of the First Protocol of the ECHR. The Secretary of State has also taken account of the rights of the children and grandchildren living on the appeal site and he considers the best interests of those children to be a primary consideration in the determination of these appeals. He has given this substantial weight. He has gone on to weigh this against the wider public interest, including the need to protect the Green Belt from harm and, unlike the Inspector, he concludes that dismissing the appeal against the enforcement notice and against the refusal of permanent planning permission would strike an appropriate and fair balance. 22. The Secretary of State has considered the Equality Act 2010 and the fact that the occupants are Irish Travellers, a protected group for the purposes of the Act. In making his decision, the Secretary of State has due regard to the requirements of the Public Sector Equality Duty, in particular the need to eliminate discrimination, advance equality of opportunity and foster good relations between those with protected characteristics and others. Following careful consideration of these matters he concludes that any impact of the dismissal of these appeals is justified and proportionate.”

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

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

“150. In carrying out the overall balancing exercise in GB cases, The Framework requires that substantial weight should be given to any harm to the GB and states that very special circumstances will not exist unless the potential harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. 151. The proposal would amount to inappropriate development. It would also result in a reduction in openness and encroach into the GB beyond a well-defined settlement boundary. Whilst any actual harm to the GB may be relatively limited it still has to be given substantial weight in the overall balancing exercise and I conclude that the proposal would conflict with [local plan] Policies GB1 and GB2 and the relevant provisions of the Framework in this regard. 152. In the context of nearby development and what the Traveller policy has to say about gypsy and traveller sites in rural or semi-rural settings, the limited harm likely to be caused to the character and appearance of site and its surroundings would be acceptable. The Council has not suggested or sought to demonstrate otherwise. 153. The Council now accepts that its concerns about flood risk to the proposal could be addressed by conditions. I share that view and conclude that the proposal would not conflict with the relevant policies in the Framework or the advice in the TG document. 154. I have also found that the Council’s concerns about highway safety, particularly the use of a substandard access, could be addressed by the appellant’s willingness to set back a section of lawful walling. Contrary to the Council’s position, I consider this could be treated as a minor amendment to the proposal and secured by condition. The location of the proposed refuse and recycling store could also be dealt with by conditions and proposed amendments to the internal road layout would ensure compliance with the HA’s adopted standards. Therefore, I conclude that the proposal would not result in any material harm to highway safety or conflict with LP Policies T5 and P4 or relevant policies in The Framework in this regard. 155. There are no sites available to meet the level of need identified in the recent GTAA commissioned by the Council and no alternative sites which the intended occupants, all of whom are gypsies, could occupy. Nor does the Council have a five year supply of gypsy and traveller sites or any clear timetable for identifying such a supply, as required by the Traveller policy. None of these matters is in dispute and I have afforded them significant weight. 156. As a consequence of its failure to meet the current level of unmet need and demonstrate an up-to-date five year supply of deliverable sites the Council has yet to comply with its duties under the Housing Act 2004. I have also found that it is in breach of the Equality Act 2010 in this regard. Its continuing failure to meet the need for additional sites means that it is also failing to facilitate the gypsy way of life, one of the overarching aims of the Traveller policy, and causing interference with the Human Rights of gypsies and travellers in need of accommodation within the borough, including the intended occupants of the appeal site. However, the appellant is only advancing personal circumstances as an additional material consideration if they are considered pivotal to the overall balancing. 157. The Appeal A proposal’s off-site impacts would be mitigated by the submitted unilateral undertaking which secures developer contributions towards the costs of providing or improving a range of local facilities, infrastructure and services. In concluding that the proposal would not, therefore, conflict with [local plan] Policies T6, R3 and IMP1, I have not afforded any weight to those element of the undertaking directed towards public art and heritage features as I have found that these do not meet the tests set out in paragraph 204 of the Framework. 158. Overall, when carrying out the required balancing exercise, my conclusions are that other considerations clearly outweigh the harm to the GB and that very special circumstances exist to justify the development. However, the Council has demonstrated that it is making progress towards identifying and meeting the level of need for gypsy and traveller sites in the borough and the thrust of the Traveller policy is that the assessment of need and site allocation to meet any perceived need should come about through a measured and systematic approach. Therefore, I consider it would be appropriate to limit the extent of any permission to a temporary period. 159. As progress so far has been slow and there is little or no prospect of this situation changing in the short term, not least because of the considerable constraints on the Council finding new sites due to the extend of the GB in the borough, I consider that a relatively long four year temporary permission would be appropriate. This should enable the Council to demonstrate whether this approach is capable of identifying and delivering a better site than the appeal site; in the meantime, the harm caused by a temporary consent would, by definition, be less than would be the case if permanent permission were to be granted. 160. In my judgment, the protection of the public interest cannot be achieved by means which would be less interfering of the rights of gypsies and travellers in need of accommodation in the borough. They are proportionate and necessary in the circumstances and would not result in a violation of their rights under Article 8 of the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998. I am also satisfied that permission in the terms described would comply with the Public Sector Equality Duty contained in the Equality Act 2010.”

“20. The Secretary of State notes that the proposed development consists of five permanent pitches all of which are intended for occupation by members of the appellant’s extended family, which includes three young children, one of which is of school age but not the appellant himself. 21. In determining the case, the Secretary of State has given particular consideration to the best interests of the children, which he considers to be a primary consideration. He understands that the school age child attends a school in Lyne which is attended by other traveller children and where teachers are familiar with supporting children with a nomadic lifestyle. However, the Secretary of State has no evidence that any children would be made homeless or forced into a roadside living if the appeal were dismissed, or that, in these circumstances, the child currently in education at the school in Lyne could not continue there. 22. For the reasons in [paragraph 139 of the inspector’s report], he agrees with the Inspector that only limited weight can be given to the personal circumstances of the proposed occupiers in the overall balancing exercise.”

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

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

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

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

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

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

“33. It is likely, therefore, that if the current appeals were to fail the occupants would move onto another unauthorised site, in all likelihood in the GB, with all the attendant problems this would bring, including to the overall detriment of Victoria’s health if she could no longer be seen by her current doctor and the children’s continuing education if they had to move school. This would amount to interference with the family’s rights under Article 8 of the Human Rights Act 1998. 34. The courts have established that when considering the proportionality of a requirement that an individual leave his home relevant considerations including whether the home was established have to be taken into consideration. It has also been established unlawfully that if very special circumstances could be established simply by relying on a catalogue of hardship the concept would be devalued and the planning system undermined. However, the courts have also recently held that all family interests, including the best interests of children, must be taken into account and assessed in cases where Article 8 is engaged.”

“35. I have found that the appeal development amounts to inappropriate development in the GB and has resulted in a limited reduction in openness. The harm to the GB has, therefore, to be afforded substantial weight. The harm caused to the character and appearance of the area, by contrast, is limited and I have afforded this only limited weight. 36. Against the harm identified it is necessary to weigh the other considerations advanced by the appellant. I have found that there is a persistent unmet need for pitches in the borough, that the Council does not currently have a five year supply of pitches, and is unlikely to have one before 2015, and that there is currently no suitable available alternative site for the family occupying the appeal site to move to. I have afforded these matters significant weight. 37. These other considerations, coupled with the personal circumstances of the occupants of the appeal site and the fact that they would be required to vacate the site were the appeals to fail, with all the hardship this would entail, have to be balanced against the general public interest of upholding the planning policies applicable to the area. In my judgment, the public interest in pursuing the legitimate aims of protecting the GB from inappropriate development could be adequately protected by granting temporary planning permission for a period of 3 years, as suggested by the Council, personal to the current occupants. 38. Taking all of these ‘other considerations’ together, I find that very special circumstances exist to clearly outweigh the harm to the GB. My decision would strike a balance between the interference of the family’s rights under Article 8 of the Human Rights Act 1998 and allowing time for the Council to identify the required 5 year supply of gypsy and traveller pitches and deliver a range of alternative sites in the borough. The other conditions suggested by the Council, which I discuss below, would further limit the harm to the GB caused by the appeal development.”

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

“12. The Secretary of State agrees with the Inspector that there would be substantial harm to the GB by reason of inappropriateness and the limited reduction in openness, while the harm caused to the character of the area is limited and so should be afforded limited weight. Against this harm, he also agrees with the Inspector that the persistent unmet need for sites within the Borough, the lack of a five year supply of pitches, and the lack of suitable alternative permanent sites for the occupiers all carry significant weight in favour of the appeal. 13. The Secretary of State has therefore gone on to carefully consider the balance of the needs of the proposed occupiers against the need to protect the GB. Although in this case he considers that the unmet need for sites and the personal circumstances of the appellant and the occupants, including the best interests of the children, carry significant weight in favour of the proposal, he does not consider this, in itself, sufficient to outweigh the harm to the GB and other harm so as to comprise the very special circumstances necessary to justify the appeal proposal. He considers that, even when combined with the personal circumstances of the proposed occupants and the needs of the children, the very special circumstances necessary to justify the development do not arise.”

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

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

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

“(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it” (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it”

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. “2. There shall be no inference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”

“i) Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account. “ii) Where the article 8 rights are those of children, they must be seen in the context of article 3 of the UNCRC, which requires a child's best interests to be a primary consideration. “iii) This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with those of his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and properly represent and evidence the potential adverse impact of any decision upon that child's best interests. “iv) Once identified, although a primary consideration, the best interests of the child are not determinative of the planning issue. Nor does respect for the best interests of a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests of the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise. “v) However, no other consideration must be regarded as more important or given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case. Further, the best interests of any child must be kept at the forefront of the decision-maker's mind as he examines all material considerations and performs the exercise of planning judgment on the basis of them; and, when considering any decision he might make (and, of course, the eventual decision he does make), he needs to assess whether the adverse impact of such a decision on the interests of the child is proportionate. “vi) Whether the decision-maker has properly performed this exercise is a question of substance, not form. However, if an inspector on an appeal sets out his reasoning with regard to any child's interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision-maker reached the decision that the adverse impact to the interests of the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact of the decision he has reached on the best interests of the child, and has concluded that that impact is in all the circumstances proportionate.”

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