Gypsies — Green belt development — Inspector finding hardship to appellant amounting to very special circumstances justifying development — Whether inspector’s reasoning inadequate — Whether unlawfulness of prior occupation a material consideration — Appeal allowed
The appellant was a Romany gypsy who lived with her husband, in breach of planning control, on a plot of green belt land that she owned. The respondent council had refused planning permission for the retention of a mobile home on the site. However, a permission personal to the appellant was later granted on appeal by an inspector, who found that her gypsy status, combined with her chronic ill-health and the unavailability of an alternative site, amounted to very special circumstances sufficient to override green belt policies under PPG 2.
On an appeal by the council, the judge rejected the contention that the inspector had failed to have regard to the unlawfulness of the appellant’s occupation as a material consideration and had therefore given inadequate reasons. The judge took the view that the inspector must have had that consideration in mind, since he had referred to the past planning history of the site and had recognised that the application was for retrospective permission.
The court below allowed the council’s appeal against that decision. It held that special circumstances could not be established simply by listing hardships, and that the council were entitled to have the case for hardship considered in a broader context and with fuller reasoning, so as not to devalue the concept and undermine the planning system. It further ruled that the absence from the decision letter of any consideration of the unlawfulness of the appellant’s occupation was, in itself sufficient ground for quashing the inspector’s decision. The appellant appealed.
Held: The appeal was allowed.
1. It was well established that personal hardship could give rise to very special circumstances. The inspector’s reasoning was both clear and ample. He had taken the view that the appellant’s very special circumstances clearly outweighed the environmental harm involved. The importance of maintaining the green belt could not justify inflating the reasons requirement: the standard of reasoning required was not dependent upon the importance of the issues involved, and, in any event, the “very special circumstances” test itself provided the green belt with the necessary protection: Westminster City Council v Great Portland Estates plc [1985] 1 AC 661, Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and Bolton Metropolitan District Council v Secretary of State for the Environment, Transport and the Regions (1995) 71 P&CR 309 applied.
2. The unlawfulness of the appellant’s prior occupation of the site was of little, if any, materiality in the circumstances of the case. Wherever an occupier sought to rely upon the fact of its continuing use of land, it was material to recognise the unlawfulness of that use as a consideration operating to weaken its claim. However, the appellant was not seeking to pray in aid her long period of occupation; that was not the nature and strength of her hardship claim. When the inspector summarised the very special circumstances of the appellant’s case, none of those factors owed anything to the length of her residence on the site; her case would have been no different had she lived there for a shorter period: Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 distinguished. In any event, the nature and extent of the appellant’s unlawful use was never in doubt. Even if it had been a material consideration, it did not give rise to a main issue in dispute and, therefore, the inspector had had no need to refer to it in terms. The appeal court’s conclusion that it had been overlooked was unsustainable.
Charles George QC (instructed by Community Law Partnership, of Birmingham) appeared for the appellant, Linda Porter; Ian Albutt and Timothy Straker QC (instructed by the solicitor to South Bucks District Council) appeared for the respondents; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the interested party, the Secretary of State.
Sally Dobson, barrister
