South Bucks District Council v Secretary of State for Transport, Local Government and the Regions

In Green Belt planning cases, very special circumstances require a clear and cogent assessment showing that the harm from inappropriate development, and any other harm, is clearly outweighed by the countervailing considerations. A list of personal hardships is insufficient, particularly where occupation has persistently breached planning control. The decision-maker must assess the lawfulness of occupation, particular needs, alternative accommodation, community environmental rights, and possible discrimination between gypsies and non-gypsies. Personal circumstances may receive direct effect exceptionally, but reasons must explain why they outweigh planning policy. A precedent objection need not defeat an applicant-specific case, although superficial hardship reasoning risks devaluing the test.

South Bucks District Council challenged, under section 288 of the Town and Country Planning Act 1990, the Secretary of State’s decision granting Linda Porter permission to retain a residential mobile home in the Green Belt for her lifetime. His Honour Judge Rich QC dismissed the Council’s application on 17 September 2002. The Secretary of State accepted that the decision should be quashed for failure to address precedent, but Mrs Porter defended the grant. The appeal concerned whether gypsy status, lack of an alternative pitch and serious ill-health amounted to very special circumstances, whether the unlawful occupation and Article 8 considerations required assessment, and whether the Inspector had given adequate reasons.

Lord Justice Pill delivered the leading judgment. Lord Justice Mance and Lord Justice Longmore agreed. The appeal was allowed and the Inspector’s decision was quashed.

1. Development plan and review. The development plan has enhanced statutory status under section 54A of the Town and Country Planning Act 1990, but it does not have absolute authority. Departure remains possible where material considerations indicate otherwise. The planning judgment primarily belongs to the decision-maker, and the court’s role is limited. The approach stated in City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447 was applied.
2. Very special circumstances. Under paragraph 3.2 of PPG 2, inappropriate Green Belt development should not be permitted unless the harm caused by inappropriateness and any other harm are clearly outweighed by other considerations. Where personal hardship is relied upon to override established policies, clear, cogent and comprehensive planning reasoning is required. A catalogue of hardships is insufficient. This reflected the warning in Doncaster Metropolitan Borough Council v Secretary of State for Environment, Transport and the Regions [2002] EWHC 808 (Admin).
3. Article 8 and material considerations. Planning law must be applied consistently with Article 8 where a decision affects a home. The lawfulness of occupation, the person’s particular needs, the availability and suitability of alternative accommodation, community environmental rights, and possible discrimination between gypsies and non-gypsies are material. The reasoning in Chapman v United Kingdom (2001) 3 EHRR 18 required consideration of those matters and recognised a wide margin for national authorities.
4. The Inspector’s failure to consider the persistent breach of planning control was itself sufficient to require quashing. The decision also failed to analyse the recent application for an alternative site, the significance of past availability, the relevance of gypsy status compared with a non-gypsy applicant, and the permanent-dwelling appearance of the mobile home. Personal circumstances could exceptionally receive direct effect, but only after a specific case had been made and properly reasoned, as explained in Westminster Council v Great Portland Estates Plc [1985] AC 661.
5. Precedent and gypsy status. The Inspector was not required to treat precedent as defeating the application because each applicant relying on very special circumstances must establish an individual special position. The Council’s argument on precedent therefore did not independently justify quashing. Nor was reliance on gypsy status, as labelled, necessarily improper; the expression could include requirements associated with gypsy status. The broader contextual analysis remained essential.

• Court of Appeal (Civil Division) — On 19 May 2003, allowed the Council’s appeal and quashed the Inspector’s planning decision: [2003] EWCA Civ 687.
• Queen’s Bench Division, Administrative Court — His Honour Judge Rich QC dismissed the Council’s section 288 application on 17 September 2002.