Gypsies – Green belt — Enforcement notice — Appellants installing mobile home and caravan on green belt-land — Residential use in breach of planning control – Inspector granting temporary planning permission – Inspector erring in law – High Court holding inspector misinterpreted green-belt policy and reached perverse decision — Whether judge erring in law — Appeal allowed.
The appellant gypsies were husband and wife. In 2005, they acquired a green-belt site, upon which they stationed a mobile home and caravan where they subsequently lived with their two young children. It was not in dispute that the residential use of the site was in breach of planning control and that it was inappropriate development in the context of green-belt policy.
The site had a lengthy procedural history; the first respondent council had served a number of enforcement notices seeking to enforce green-belt policy. The appellants applied for permanent planning permission so that their occupation of the site could be rendered lawful. Following an inquiry, an inspector appointed by the second respondent secretary of state recommended that, although the circumstances did not justify permanent planning permission, the appellants should be entitled to five years’ temporary permission, bearing in mind the increased demand for gypsy sites in the area.
The High Court allowed an appeal by the first respondents on the basis that the inspector had failed properly to consider the test to justify development in the green belt, namely whether very special circumstances existed.
The appellants appealed. The principal issue for determination by the Court of Appeal was whether the judge had been correct to hold that the inspector had misinterpreted the guidance para 3.2 of PPG 2 relating to development in the green belt.
Held: The appeal was allowed.
The judge had been wrong to treat the words “very special” in para 3.2 of PPG 2 as being simply the converse of “commonplace”. Although rarity might contribute to the “special” quality of a particular factor, it was not essential as a matter of ordinary language or policy. The word “special” in the guidance did not connote a quantitative test but a qualitative judgment regarding the weight to be given to the particular factor for planning purposes.
Accordingly it was impossible to hold that the loss of a gypsy family’s home, with no prospect of replacement, was incapable in law of being regarded as being a “very special” factor for the purposes of the guidance. However planning authorities were not bound to regard that factor as sufficient in itself to justify the grant of permission in any case. There had to be a balance involving issues of complexity and sensitivity, which was a judgment of policy, not law, that needed to be addressed at both a general and a particular level.
At the general level, a judgment had to be made regarding the circumstances in which the societal value attached to the protection of the homes of gypsies, as individuals, could in principle be treated as being sufficiently important to outweigh the public protection of the green-belt. Each inspector had to make his own judgment as to how to strike that balance.
At the particular level, it was necessary to determine whether the balance was affected by individual factors: for example, on the one hand, public or private need or personal circumstances, such as health or education requirements; on the other hand, particular factors that increased or diminished the environmental effect of the proposals upon the locality or, as in the instant case, limiting its effect in time. That was necessarily a judgment for the planning inspector on the basis of the evidence before him and his view of the site. The inspector had not erred in failing to apply a two-stage test under para 3.2 and it followed that his decision was not liable to be quashed on that ground.
Furthermore, his decision had not been perverse or otherwise open to legal challenge. In all the circumstances, he had been entitled in law to treat the prospect of the immediate eviction of a gypsy family with young children with nowhere else to go as being sufficiently “special” in itself to support his conclusion.
Charles George QC and Stephen Cottle (instructed by Community Law Partnership, of Birmingham) appeared for the appellants; Robin Green (instructed by the legal department of Wychavon District Council) appeared for the first respondent); the second respondent did not appear and was not represented.
Eileen O’Grady, barrister
