West Law Report

Balancing Gypsy housing and Green Belt protection

Posted in Times Law Report by mrkooenglish on July 2, 2008

From The TimesJuly 1, 2008

Balancing Gypsy housing and Green Belt protection

Court of Appeal

Published July 1, 2008

Regina (Wychavon District Council) v Secretary of State for Communities and Local Government and Others

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Carnwath and Lord Justice Wilson

Judgment June 23, 2008

The loss of their home by a Gypsy family with nowhere else to live was capable in law of being regarded as a very special factor for the purposes of the national guidance issued to local planning authorities and was to be weighed in the balance as between the value society attached to the protection of Gypsy homes against the public value of protecting 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 Mr Justice Mitting ([2007] EWHC 3209 (Admin)) of the decision of a planning inspector, Mr G. M. Hollington, to grant temporary planning permission to Mr and Mrs Butler to stand a mobile home and caravan on a green field site in Worcestershire after the refusal of the claimant, Wychavon District Council, to grant permission. The Secretary of State for Communities and Local Government, did not appear and was not represented.

Mr Charles George, QC and Mr Stephen Cottle for Mr and Mrs Butler; Mr Robin Green for the council.

LORD JUSTICE CARNWATH said that Mr and Mrs Butler acquired the site in 2005 and stationed a caravan there. They had been living there ever since. In December 2005 they applied for permission to station a mobile home and caravan. The present residential use of the site was in breach of planning control and was inappropriate development in the context of Green Belt policy.

There were relevant policies relating to development in Planning Policy Guidance 2: Green Belts issued in 1995 and amended in 2001. The key paragraphs were 3.1 and 3.2 which 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: Gypsy Sites and Planning made it clear that generally provision for Gypsy 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 01/06 (Communities and Local Government): Guidance on Changes to the Development Control System 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 a Green Belt site might have to be accepted if that proved impossible. The general intention was to avoid Gypsies becoming homeless through eviction.

The inspector found that the proposal would encroach on the Green Belt, that there would be some loss of openness and so some harm to the purpose of the Green Belt policy and that it would harm the surrounding area’s rural character and mostly unspoiled appearance. On the other hand, there was a significant general unmet need for additional Gypsy sites in the adjacent area and a clear lack of alternative sites available.

The council criticised the inspector’s reasoning because it failed to apply the correct twofold test: see R (Chelmsford Borough Council) v First Secretary of State ([2004] 2 P & CR 677, paragraph 58). The judge found three commonplace factors which taken together were not capable of amounting to very special circumstances. His Lordship said that the judge was wrong to treat the words “very special” in paragraph 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 European Convention on Human Rights.

Strasbourg case law placed particular emphasis on the special position of Gypsies as a minority group, notwithstanding the wide margin of discretion left to member states in relation to planning policy: see Chapman v United Kingdom (Application No 27238194) ((2001) 33 EHRR 399). The 2006 guidance reflected the special position of Gypsies.

Against that background it would be impossible to hold that the loss of a Gypsy family’s home, with no immediate prospect of replacement, was incapable in law of being regarded as a very special factor.

That, however, did not mean that planning authorities were 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 two levels: one of general principle, the other 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 Gypsies as individuals could in principle be treated as sufficiently important to outweigh the public value represented by the protection of the Green Belt. The guidance limited itself to indicating that the balance of such factors had to be such as clearly to outweigh Green Belt considerations. It was thus left to each inspector to make his own judgement as to how to strike that balance in a particular case.

At the particular level, there had to be a judgment 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, such as compelling health or education requirements; on the other, particular factors increasing or diminishing the environmental impact of the proposals in the locality, or, as in the present case, limiting its effect in time. That judgement had necessarily to be made by the planning inspector, on the basis of the evidence before him and his view of the case.

There was no need for a rigid distinction between the two parts of the question in paragraph 3.2 as was drawn in the Chelmsford case. His Lordship preferred Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions ([2002] JPL 1509) which treated the two questions as linked, but started from the premise that inappropriate development was by definition harmful to the purposes of the Green Belt. The inspector did not err in failing to apply a two-stage test.

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 Gypsy family with young children, who had nowhere else to go, as sufficiently special in itself to support his conclusion.

The authority was concerned that the inspector’s decision if upheld might set an undesirable precedent for Gypsies 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. It was unsurprising that the results might not always be consistent. But that was not in itself indicative of illegality or irrationality.

The court’s task was to enforce the law, not to fill in gaps in national policy. Responsibility for providing consistent policy guidance lay with the secretary of state. If the present guidance was insufficiently clear or complete, complaints should be addressed to her.

The Master of the Rolls and Lord Justice Wilson agreed.

Solicitors: Mr Ian Marshall, Pershore; Community Law Partnership, Birmingham.

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