Connors & Ors v Secretary of State for Communities and Local Government & Ors

Inappropriate development in the Green Belt remains harmful even where permission is sought only temporarily. Substantial weight must be given to that harm, including harm to openness and any additional harm to the Green Belt’s purposes. Unmet need for Traveller sites, the absence of a five-year supply, personal circumstances and children’s best interests are material considerations, but unmet need alone need not justify permission.

Children’s best interests are a primary consideration, not a determinative one. The decision-maker must identify them, keep them at the forefront of the planning balance and assess whether the interference with them is proportionate. A refusal may comply with Article 8 where it pursues the legitimate aim of protecting the Green Belt and strikes a fair balance.

Five Irish Travellers and Romany Gypsies challenged decisions of the Secretary of State dismissing appeals concerning proposed residential Traveller sites in the Green Belt. The challenges were brought under section 288 of the Town and Country Planning Act 1990; two claimants also sought permission to appeal under section 289 against enforcement-notice decisions.

The claimants alleged unlawful differential treatment, breach of the public sector equality duty, irrationality, failure to consider unmet need and family circumstances, and incompatibility with Articles 6, 8 and 14 of the Convention. The central issues were whether the appeals had been lawfully determined by the Secretary of State and whether the individual planning balances justified permanent or temporary permission.

1. The policy and directions concerning determination of Traveller-site appeals by the Secretary of State could not properly be challenged in these proceedings. Section 288 did not extend to the relevant directions or policy. A challenge under section 289 was in principle possible for a direction given in enforcement proceedings, but the challenge was out of time and should not be introduced after determination of the substantive appeals.
2. The evidence did not establish differential treatment between Traveller and non-Traveller Green Belt appeals. The statistics did not permit a reliable comparison. The decision letters had treated unmet need and the absence of a five-year supply as significant material considerations. Paragraph 25 of the Traveller Sites Policy was transitional and, in any event, did not establish the alleged discrimination.
3. Under the Green Belt policies, inappropriate development is harmful by definition. It harms openness and may cause additional harm to one or more of the Green Belt’s purposes. Temporary development remains inappropriate development and substantial weight must be given to its harm. Very special circumstances require the harm to be clearly outweighed by other considerations.
4. Unmet need for Traveller sites and the absence of a five-year supply are material considerations. The decision-maker may conclude that unmet need, alone or with other considerations, does not clearly outweigh Green Belt harm. That is a planning judgment, provided the relevant considerations are identified and addressed.
5. Following Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin), children’s best interests must be identified and treated as a primary consideration. They are not determinative. The decision-maker must assess the adverse impact of the decision and whether it is proportionate.
6. The decisions lawfully considered the individual family circumstances, including health, education, traditional lifestyle, lack of alternative sites and the likely effect of refusal. The interference with Article 8 rights pursued the legitimate aim of protecting the environment and the Green Belt and was proportionate. There was no breach of the public sector equality duty.
7. The section 288 applications were refused. Permission to appeal under section 289 was granted in the cases of Mrs Doran and Mrs Lee, but the appeals were dismissed. Permission to appeal against Mrs Doran’s direction that the Secretary of State determine her appeal was refused.

These were first-instance applications under sections 288 and 289 of the Town and Country Planning Act 1990 concerning decisions made by the Secretary of State on planning and enforcement appeals.