Simmons v First Secretary of State & Anor

In a Green Belt planning case involving a gypsy site, the applicant bears the overall burden of establishing very special circumstances. That does not create a specific evidential obligation to conduct open-ended searches for alternative sites. The decision-maker must assess the evidence as a whole, including information available from planning authorities and relevant statistics. Evidence of alternative sites outside the application district may be relevant, but its weight depends on the circumstances. A conclusion that searches were inadequate must identify the significance of the alleged omission. A planning decision-maker may differ from an inspector on the weight of Green Belt harm without visiting the site where sufficient material is available.

The claimant challenged the Secretary of State’s dismissal of his appeal against an enforcement notice requiring him to discontinue residential caravan use on land in the Metropolitan Green Belt. An inspector had recommended allowing the appeal, finding very special circumstances based on unmet gypsy accommodation need, the local authority’s failure to address that need, the lack of alternative sites and the educational needs of the claimant’s child. The Secretary of State reached a different planning judgment and treated the lack of clear evidence of searches for alternative sites as weighing against the claimant. The central issues were whether that approach was legally permissible and whether the Secretary of State could differ from the inspector on Green Belt harm without a site visit.

1. Claim allowed. The Secretary of State’s decision was quashed.
2. The overall burden lies on an applicant for Green Belt permission to establish very special circumstances. In a gypsy case, however, that principle does not impose a specific evidential burden to search extensively for alternative sites. Relevant information is likely to come from the local planning authority, national statistics and planning records.
3. The availability of alternative sites in the relevant planning district is a material consideration. Sites outside the Green Belt but within that district may carry substantial weight. Evidence concerning sites outside the district may also be relevant, but it must be assessed alongside the applicant’s personal and family circumstances. Where the evidence establishes that no alternative sites are available, a failure by the applicant to search is not relevant. Conversely, failure to search may prevent a fact-finder from reaching that conclusion.
4. The Secretary of State misdirected himself in treating Circular 1/94 as imposing an obligation on the claimant to consult the authority or search for alternative sites. The Circular’s guidance was directed to authorities and did not create such a burden on gypsies. The Secretary of State also failed to account for material evidence of searches at Polhill and elsewhere, the cost of other sites, and the inspector’s findings. His unexplained reference to a lack of clear evidence had no identified consequence and was absent from the essential balancing exercise.
5. The Secretary of State was entitled to reach a different conclusion from the inspector on the degree of harm to the Green Belt without a site visit. The inspector’s detailed description and photographs provided sufficient material for that planning judgment. His acceptance of the inspector’s reasons for rejecting a temporary permission was also adequate.

1. Inspector: recommended allowing the claimant’s appeal against the enforcement notice, finding very special circumstances.
2. Secretary of State: dismissed the appeal by decision letter dated 2 July 2004.
3. High Court (Administrative Court): quashed the Secretary of State’s decision.