Gypsy and Traveller sites in the Green Belt
This case was a s288 challenge against the decision of an inspector to refuse permission on appeal for a material change of use of land in the Green Belt for the stationing of caravans for residential occupation.
It resulted in an interesting discussion of the application of various principles such as the interaction of protection of the Green Belt, traveller needs, personal circumstances and the primacy of the best interests of the child, all of which are points which apply in almost all G&T cases, whether planning or enforcement.
The background is that the claimant’s partner sought permission for the stationing of the caravans on undeveloped land in the Green Belt, land which was previously used for grazing horses.
The council’s Local Plan was very out of date, there were no policies for meeting the accommodation needs of travellers, the council did not have a 5 year supply of pitches and there was a clear and immediate need for sites.
The claimant lived on the site with her partner and children, who attended a local school. The claimant had various disabilities and medical needs.
Nevertheless, permission was refused as these factors were not considered to outweigh the harm to the Green Belt such as to amount to very special circumstances.
The refusal was appealed and a hearing was held before a planning inspector. The main issues were the effect on openness of the Green Belt and whether there were very special circumstances (VSCs). The inspector held that there was clear harm to the Green Belt and to openness and that all of the other factors were insufficient to clearly outweigh this harm, such that there were no VSCs.
The decision was challenged by the claimant. A s288 appeal requires the court’s permission before it can go ahead and, in this case, that was a substantial process in its own right taking almost 2 years. It seems that the grounds of challenge changed somewhat during the permission hearing, its renewal, and the appeal of refusal of permission. In the end, the grounds of challenge considered by Mrs Justice Lang were whether the decision was irrational (ground 1), whether it failed to give adequate weight to the best interests of the children (ground 2), whether the planning balance was disproportionate or unreasoned (ground 3) and whether that balancing exercise was flawed (ground 4).
The judge reminded us of the position of G&T communities in the UK, the serious shortage of sites, and the centrality of the nomadic lifestyle. She also reminded us of the PPTS from December 2023 which considers that traveller sites in the Green Belt are inappropriate development and, subject to the best interests of the child and personal circumstances, are unlikely to be sufficient to clearly outweigh the Green Belt harm such as to be VSCs. While the availability (of lack of it) of sites must be considered, the PPTS says it was unlikely to outweigh the harm to the Green Belt. That a site is in a Green Belt is, says the PPTS, an exception to the general principle that the lack of a 5 year supply of pitches was a significant material consideration.
The judge also reminded us of the court’s reluctance to interfere in matters of planning judgment provided that there is no irrationality, that the decision is reasoned adequately and does not give rise to substantial doubt about whether the inspector went wrong in law.
Case law makes clear that Green Belt impacts are matters of planning judgment and that the planning balance is not a mathematical exercise but rather a single exercise where the decision maker considers whether there are any VSCs which outweigh the acknowledged harm to the Green Belt.
And case law makes clear that the best interests of children, while a primary consideration in the planning balance, is not the only primary consideration. Nor were they paramount; they could be outweighed by other considerations.
The inspector used the word “substantial” in relation to the weight afforded to the Green Belt harm and “significant” in relation to weight afforded the best interests of the child. A witness statement was provided to the court to explain that “substantial” simply reflected the NPPF language and that the inspector had not seen any difference between the two words in terms of the relative weights of each. The judge noted that filing of a witness statement was an unusual approach; appeals should generally be considered on the basis of the inspector’s decision, not post-decision rationalisation. The judge agreed however that “substantial”, as used by the inspector, did not denote a greater weight than “significant”.
In the end, the judge’s decision on the grounds of appeal was succinct. The inspector had directed herself correctly, had balanced the planning factors and had not reached an irrational conclusion. In particular, while there were a number of factors which favoured the development (not least the lack of sites etc), it was not surprising that these were not considered to outweigh the Green Belt harm given the NPPF/PPTS wording. Ground 1 failed. The decision was sufficiently reasoned and explained why interference in article 8 rights was necessary; it was therefore proportionate. Ground 3 failed. The harm to the Green Belt was not given greater weight than the interests of the child; both had the same weight; but that was not sufficient to “clearly outweigh” the harm to the Green Belt; ground 2 failed. And the balancing exercise was a reasonable exercise of the inspector’s judgment and would not be interfered with; ground 4 failed.
The judgment is interesting in its support for the inspector’s decision making and the clear wording of the NPPF and the PPTS. There were a large number of very significant factors which went against the council, not least lack of site supply, the lack of an uptodate local plan, the specific needs of the claimant to be on this particular site, the needs of her children and their human rights. Nevertheless, the conclusion that these were insufficient, singly or together, to outweigh the harm to the Green Belt was considered unimpeachable.
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