Doherty, R (on the application of) v First Secretary of State & Anor

In determining whether very special circumstances justify inappropriate development in the Green Belt, the decision-maker must balance the development’s planning harm against the claimant’s personal and other material considerations. A tentative observation that alternative accommodation might be found does not invalidate the decision where the principal conclusion rests on evidence that relevant educational facilities are available elsewhere and that the children could reasonably move schools. The court will not interfere with the Secretary of State’s planning judgment unless the balancing exercise is legally flawed. The decision must be read as a whole.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against the Secretary of State’s dismissal of his appeal concerning an enforcement notice issued by Hertsmere Borough Council. The notice alleged unauthorised use of land as a caravan site in the Green Belt.

The Secretary of State accepted substantial general need for lawful Gypsy sites but concluded that the planning harm was not outweighed by the claimant’s family, educational, health and accommodation needs. The central issues were whether insufficient weight had been given to the shortage of sites and whether the Secretary of State had lawfully assessed the children’s educational needs and the prospect of alternative accommodation.

1. Appeal dismissed. The Secretary of State’s decision was not legally flawed. The claimant was ordered to pay the first respondent’s costs, subject to the usual legal aid terms.
2. The Secretary of State had plainly considered the general need for further Gypsy accommodation and gave that factor some weight. The Council’s inability to identify a suitable site did not prevent the Secretary of State from concluding that a wider, systematic search, including land outside the Green Belt and possibly outside Hertfordshire, might identify alternatives. The claimant had no clearly identified local connection or affinity and had carried out only a limited search.
3. The educational advantages of the children’s existing schools were important considerations. However, the evidence accepted by the Inspector established that specialist assistance for Gypsy children was available elsewhere, subject to school places. The children had not moved to the site because of the particular qualities of those schools, and taxis provided additional flexibility.
4. The observation that there was no certainty that another site might not be found within a reasonable distance of the same schools was tentative and was not central to the educational conclusion. The Secretary of State’s decision rested principally on the availability of comparable facilities elsewhere and the absence of evidence that moving schools would be particularly damaging to the children’s educational development.
5. Reading the decision letter as a whole, the Secretary of State carried out the required planning balance. The personal and educational needs did not amount to very special circumstances clearly outweighing the substantial Green Belt, landscape, highway-safety, sustainability and policy objections. That was a planning judgment to which the court should not interfere.

• Secretary of State: Dismissed the claimant’s appeal against the enforcement notice and upheld the Inspector’s recommendation, subject to an extended compliance period.
• High Court (Administrative Court): Dismissed the statutory appeal under section 289 of the Town and Country Planning Act 1990.