Green belt — Claimant gypsy occupying land in contravention of planning policy — Enforcement notice — Very special circumstances justifying development in green belt — Whether claimant obliged to search for alternative sites — Claim allowed
The claimant was an Irish traveller and gypsy within the definition contained in section 24(8) of the Caravan Sites and Control of Development Act 1960. He had bought an area of open land within the metropolitan green belt and a special landscape area and moved there with his family. The second defendant council served an enforcement notice requiring him to discontinue his use of the land.
An inspector appointed to deal with the claimant’s defence to the notice at a local inquiry recommended that the appeal be allowed because he considered that very special circumstances existed to justify the inappropriate development in the green belt. He concluded, inter alia, that further gypsy sites were required in the area and that any harm caused to the green belt was very limited.
The first defendant called in the appeal for his own decision on the ground that it related to proposals for significant development. He dismissed it, concluding that no clear evidence had been provided that the claimant had made any significant efforts to find alternative sites in accordance with the guidance in Circular 1/’94.
The claimant challenged the decision of the first defendant to uphold the enforcement notice. He contended that the decision should be quashed on grounds of irrationality, error and perversity. The challenge also raised an important issue as to whether a general evidential burden required a gypsy, who had taken up unauthorised occupation of a site within a green-belt area, to establish that he had searched for alternative sites.
Held: The claim was allowed.
The decision would be quashed. The first defendant had concluded that there was a lack of evidence concerning the claimant’s search for an alternative site. He appeared to have paid regard to part only of the evidence, ignoring material suggesting that searches had been undertaken nearby, as well as the claimant’s evidence that alternative sites were too expensive.
The first defendant regarded Circular 1/94 as being an obligation, the non-fulfilment of which he held against the claimant. Further, he had concluded that the lack of cogent evidence concerning searches for other sites weighed against the claimant’s case but he had failed to indicate how it did so.
Where a gypsy sought permission to develop a site within the green belt, the decision as to whether very special circumstances arose for permitting the development required consideration of the availability of an alternative site in the planning district in which the application had been made.
The best evidence likely to be available was from statistics and information obtainable by the local planning authority. The purpose of Circular 1/94 was to ensure that such evidence was available. In this case, the inspector had concluded that no suitable alternative sites were available, and the court was not persuaded that, in such circumstances, the failure of a gypsy to search for sites was relevant.
Circular 1/94 did not support the contention that gypsies should travel around extensively outside the area in which they had applied to remain in order to provide material going to the non-availability of other sites. Such an open-ended burden upon an applicant, in particular a gypsy, would be oppressive and unfair owing to lack of clarity.
Alan Masters (instructed by Bramwell Browne & Odedra, of Chesham) appeared for the claimant; Timothy Morshead (instructed by the Treasury Solicitor) appeared for the first defendant; Robert Lewis (instructed by the solicitor to Sevenoaks District Council) appeared for the second defendants.
Eileen O’Grady, barrister
