SMITH v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national, born in 1935 and living in South Bedfordshire. She is represented before the Court by Ms White, a solicitor practising in Berkhamsted. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, a gypsy born in Luton, started travelling at the age of 21 years when she married a gypsy who travelled. After the marriage ended, the applicant married John Smith, a romany gypsy who had travelled with his parents widely. During their travelling together, they and their three children were moved on by the police many times for parking their caravan on the road side. They were frequently moved on week after week and escorted by the police outside the county. In the 1970’s, the applicant and her family found a pitch on an official site at Stopsley, Luton. Her children and their caravan were attacked by other gypsies, and there were quarrels between the applicant and other gypsy parents. She and her husband decided to move off the pitch. After some years of travelling and making short term stays on gypsy sites, the applicant moved onto a private gypsy site in Wellingborough, Northamptonshire, where they stayed for six years. After this period, a new gypsy family moved onto the adjacent pitch, who were drunkards and kept the applicant and her family awake with brawls and quarrels. A neighbouring caravan was set on fire and another caravan vandalised. The applicant’s husband grew very depressed and in 1989 he developed a heart condition requiring quiet and rest. After many years looking for a piece of land on which to settle, they found an affordable site at Half Moon Lane, Pepperstock, Bedfordshire. This was close to the applicant’s family and in a quiet lane full of mobile homes and adjacent to an official gypsy site. They purchased the site in summer 1996. A planning application was put in on 15 August 1996 for two mobile homes and two tourers. The application was refused by South Bedfordshire District Council (‘the Council’) on 11 October 1996. An enforcement notice was issued on 12 December 1996. The applicant and her husband’s appeal against the refusal of planning permission and the enforcement notice was heard by a planning inspector on 14 and 15 October 1997. In his decision letter of 22 December 1997, the inspector held inter alia: “7. The site is located within the predominantly open countryside to the south of the settlement of Slip End… It is irregular in shape and approximately 0.251 hectares in extent. It adjoins a former chapel to the east, which is now used as a day care centre, and on its western side it adjoins a residential property,… and an open field. Opposite is a purpose built local authority gypsy site, Timberlands, and to the south east is the Half Moon public house. It falls within the South Bedfordshire Green Belt. … 12. The site is clearly visible from both Half Moon Lane and Front Street… 13. You claim that the site is well-screened and does not intrude into the open countryside. To my mind, the number of caravans, structures, vehicles and trailers, etc. effectively urbanises the site and results in a material loss of openness. The use detracts from the visual amenity of the site. The land north of Half Moon Lane is largely open. Development of the site intrudes into the open belt of land, south of Slip End, and consolidates the sporadic development in Pepperstock. It contributes to the coalescence of Pepperstock and Slip End. It involves an encroachment of residential use into the open countryside contrary to one of the main purposes of the Green Belt. 15. The site has a 40m boundary with a private dwelling which is positioned close to the boundary. I consider that the occupants of the dwelling have experienced a material loss of amenity due to the loss of openness and increased noise and disturbance from the intensified activity on the site. ...There is evidence of on site business activities. The appeal site consolidates gypsy site provision in the locality and extends the use on both sides of Half Moon Lane. The change of use results in an ad hoc extension to the consciously located official gypsy site opposite. It has resulted in loss of natural features and does not complement and harmonise with the local surroundings contrary to policy BE11. In my view the use diminishes the rural quality of the landscape in this area. 19. …There are two purpose built gypsy sites in the district and three authorised sites. The Council claims that statistical evidence does not demonstrate a continuing or compelling need for further provision in the district, either permanent, temporary or transit. I note that a Designation Order for the district was made by the Secretary of State in 1982 as an area to which section 10 of the Caravan Sites Act 1968 applied. On the basis of official counts taken twice a year, the level of need in the district in recent years has been very low… 20. The Timberlands site opposite has recently been upgraded and accommodates twelve families. The other Council site, Eaton Bray, accommodates 29 families. There are three other local authority sites within the County. The current waiting list for Timberlands is three but there are eight vacancies at the Kempston Hardwick site. <The applicant’s husband> voluntarily moved to the site from an official gypsy site at Wellingborough, Northamptonshire. He has no local connections in Slip End or Pepperstock or particular links with South Bedfordshire. … 22. <The applicant’s husband> has a heart condition and is on pills for life, he had gout and a back problem… I appreciate that he needs a more peaceful and settled existence. Nevertheless, the site is not within easy reach of medical and pharmacy services. <He> is able to undertake some light work, such as erecting fencing and is able to drive; I am not persuaded that his medical condition amounts to such very special circumstances which would justify a breach of Green Belt policy. 23. <The applicant’s husband> approached other travellers to find a site and made informal inquiries about vacancies on the Timberlands site. His preference to live with his son complicates availability. He did not consult with the Council before he bought the site... the evidence indicates that the Council made every effort, both in writing and by personal visits, to inform <him> that planning permission was needed and that approval would be unlikely due to the site’s Green Belt status. … 25. The objections to the development in the Green Belt are serious ones which cannot be overcome by the imposition of planning conditions such as landscaping… The public interest can only be safeguarded by the cessation of the use...” The Inspector granted a compliance period of one year in recognition that it might take some considerable time for a vacancy to be found on an appropriate site elsewhere. Counsel advised that there was no error of law on which the applicant and her husband could appeal to the High Court. He did consider that the inspector had made an errors of fact, in particular, in setting out the local council criteria for gypsy sites. However, this did not assist the applicant as it was clear from the rest of the decision that the inspector would have found that the relevant criteria had not been met and would have reached the same result. In 1995, the Secretary of State for the Environment approved the local plan for South Bedfordshire. This identified specific sites for 1,140 dwellings, planned to identify a further 8,500 dwelling sites and failed to identify a single site for gypsies. The local authority had zoned all rural land as Green Belt, excluding 80 hectares of quarries unsuitable for human habitation. Residential and agricultural land in the area was valued at between 300,000 and 500,000 pounds sterling (GBP) per acre. In or about August 1999, the applicant’s husband was convicted of being in breach of an enforcement notice and fined 1000 GBP. He lodged a further application for planning permission which was dismissed after a public enquiry at a date unspecified. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601). An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act). There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995). “1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. … 1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development. 1.5. There are five purposes in Green Belts: – to check the unrestricted sprawl of large built-up areas; – to prevent neighbouring towns from merging into one another; – to assist in safeguarding the countryside from encroachment; – to preserve the setting and special character of historic towns; and – to assist in urban regeneration by encouraging the recycling of derelict and other urban land. … 2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. … 3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. … 3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”