| PLANNING — Development — Green Belt land — Gipsy occupying mobile home on own land in breach of planning control and seeking retrospective planning permission — Permission refused as inappropriate use of land and no special circumstances to justify departure from usual Green Belt policy — Inspector granting temporary planing permission — Permission quashed on appeal — Whether loss of gipsy home capable of constituting very special factor in law — Whether protection of homes of gipsies capable of outweighing public value of protecting Green Belt — Planning Policy Guidance Note 2 — Circular 01/2006
R (Wychavon District Council) v Secretary of State for Communities and Local Government and others [2008] EWCA Civ 692; [2008] WLR (D) 201
CA: Sir Anthony Clarke MR, Carnwath and Wilson LJJ: 23 June 2008
The loss of a gipsy family’s home with no immediate prospect of replacement was capable in law of being regarded as a very special factor within para 3.2 of the Planning Policy Guidance Note 2 issued by the Secretary of State to local planning authorities. It was a factor to be weighed in the balance when considering the value society attached to the protection of gipsy homes against the public value of the protection of the Green Belt.
The Court of Appeal so held, allowing the appeal of the second and third defendants, Kathleen and Leonard Butler, against the quashing by Mitting J on 19 December 2007 of the decision of a planning inspector, Mr G M Hollington, to grant temporary planning permission to the second and third defendants to keep a mobile home and caravan on a green field site in Worcestershire, the claimant, Wychavon District Council having refused permission. The first defendant, the Secretary of State, did not appear and was not represented.
CARNWATH LJ said that there were relevant policies relating to development in the Green Belt in Planning Policy Guidance Note 2 issued in 1995 and amended in 2001. The key paragraphs 3.1 and 3.2 set out the general presumption against “inappropriate development” in the Green Belt, and the principle that such development should not be approved except in “very special circumstances.” Guidance in Circular 1/94 made clear that in general provision for gipsy sites should not be made in areas of open land where development was “severely restricted” such as the Green Belt. That guidance was replaced by Circular 01/2006, which changed the emphasis. Although alternatives should be explored first and it should “usually” be possible to allocate sufficient sites elsewhere, the implication was that if that proved impossible a Green Belt site might have to be accepted. The general intention was to avoid gipsies becoming homeless through eviction. The principal issue was whether the judge was correct to hold that the inspector misinterpreted para 3.2 of the Green Belt Guidance. His Lordship said that the judge was wrong to treat the words “very special” in para 3.2 as the converse of “commonplace.” The word “special” connoted not a quantitative test but a qualitative judgment as to the weight to be given to the particular factor for planning purposes. Thus respect for the home was commonplace in that it reflected an aspiration shared by most of humanity. But it was at the same time sufficiently special for it to be given protection as a fundamental right under the Convention for the Protection of Human Rights and Fundamental Freedoms. Furthermore Strasbourg case law placed particular emphasis on the special position of gipsies as a minority group, notwithstanding the wide margin of discretion left to member states in relation to planning policy: see Chapman v United Kingdom (2001) 33 EHRR 399. The special position of gipsies was reflected in the 2006 guidance. Against that background it would be impossible to hold that the loss of a gipsy family’s home, with no immediate prospect of replacement, was incapable in law of being regarded as a very special factor. However, the planning authorities were not bound to regard that factor as sufficient in itself to justify the grant of permission in any case. The balance was one for member states and involved issues of complexity and sensitivity. That was a judgment of policy not law, and it needed to be addressed at the level of general principle and at the level particular to the individual cases. At the general level, a judgment had to be made as to whether, or in what circumstances, the societal value attached to the protection of the homes of gipsies as individuals could in principle be treated as sufficiently important to outweigh the public value in protecting the Green Belt. The guidance indicated only that the balance of such factors had clearly to outweigh Green Belt considerations. It was thus left to each inspector to judge to how to strike that balance in a particular case. At the particular level there had to be a judgement how if at all the balance was affected by factors in the individual case: for example, on the one hand, public or private need, or personal circumstances; on the other, particular factors increasing or diminishing the environmental impact of the proposals in the locality, or limiting its effect in time. That judgement had necessarily to be made by the planning inspector, on the evidence before him and his view of the case. There was no need to draw a rigid distinction between the two parts of the para 3.2 question as in R (Chelmsford Borough Council) v First Secretary of State [2004] 2 P & CR 677, para 58. There was no policy or common sense reason why the factors which made a case “very special” should not be the same as, or at least overlap with, those which justified holding that Green Belt considerations were clearly outweighed. His Lordship referred Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] JPL 1509, which treated the two questions in para 3.2 as linked, but started from the premise that inappropriate development was by definition harmful to the purposes of the Green Belt. Against the background of the 2006 policy, and the expectation of sites becoming available in the near future, the inspector was entitled in law to treat the prospect of immediate eviction of a gipsy family with young children, who had nowhere else to go, as sufficiently special in itself to support his conclusion. The conclusion was not perverse. The authority was concerned that the inspector’s decision if upheld might set an undesirable precedent for gipsies or travellers seeking temporary permissions in the Green Belt. It was not for the court to provide a remedy. The legal and policy framework left significant discretion to inspectors at both general and specific levels. The results might not always be consistent, but did not in itself indicate illegality or irrationality. The court’s task was to enforce the law, not to fill in gaps in national policy. Recent House of Lords cases had cautioned against undue intervention by the courts in policy judgments by expert tribunals within their areas of specialist competence. The same reticence should apply in considering the decisions of inspectors on issues of planning judgement (as South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 exemplified). Responsibility for providing consistent policy guidance lay with the Secretary of State. If the present guidance was insufficiently clear or complete, it was to her that complaints should be addressed.
Sir Anthony Clarke MR and Wilson LJ agreed.
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