Basildon District Registry v First Secretary Of State & Ors [2004] EWCA Civ 473

Case No B2/2003/2383[2004] EWCA Civ 473
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(SIR RICHARD TUCKER)
Venue Royal Courts of JusticeDate Thursday, 25 March 2004
Strand
London, WC2 2LL
B E F O R E:
LORD JUSTICE RIX
LORD JUSTICE LONGMORE
Between
BASILDON DISTRICT REGISTRYAppellant-v-
Between
THE FIRST SECRETARY OF STATERespondentRACHEL COOPERRespondentELIZABETH COOPERRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR PETER MILLER (instructed by Lorraine Browne, Solicitor for Council, Essex BS14 1DL) appeared on behalf of the AppellantMR MARC WILLERS (instructed by Messrs Bromwell Browne Odera, Bucks) appeared for Respondents
J U D G M E N TThursday, 25 March 2004

LORD JUSTICE RIX:

[1]The second and third respondents, Rachel and Elizabeth Cooper, are Romany gypsies. Rachel lives with her husband and their children in their mobile home and touring caravan stationed on a piece of land known as Foxgrove to the rear of Fanton Hall Cottages, Harrow Road, North Benfleet, Wickford in Essex. Elizabeth lives with her four young children in her caravan, a brick building and a wooden hut stationed on an adjacent piece of land known as Blossom.[2]On 8 May 2003 the first respondent, the First Secretary of State, granted Rachel and Elizabeth planning permission for the change of use of their respective plots to gypsy caravan sites, subject to conditions which were identified. Rachel was given planning permission for a gypsy caravan site, consisting of a mobile home, a touring caravan, a utility room and a hardstanding at Foxgrove. Elizabeth was given permission for a gypsy caravan site consisting of a brick building, wooden hut and residentially used caravans. In giving his permissions, the First Secretary of State adopted the conclusions, recommendations and reasons of his planning inspector set out in the report of Mr Dennis Bradley, undated but following an inquiry held on 27 and 28 January and 3 February 2003.[3]The appellant, Basildon District Council, challenged the First Secretary of State's decision by making an application pursuant to section 288 of the Town and Country Planning Act 1990, as amended. That application was heard in October 2003 by Sir Richard Tucker and dismissed. Basildon District Council ("the Council") now appeals to this court against the judge's decision.[4]The essential issue on this appeal is whether the inspector adequately considered the gypsy status of Rachel and Elizabeth in the light of the decision of this court in Wrexham County Borough Council v The National Assembly forWales [2003] EWCA Civ 835. The judgment in this court in Wrexham was handed down in June 2003, which was following the decision of the First Secretary of State (and therefore of the planning inspector's report) but before the matter came before Sir Richard Tucker. In Wrexham, this court differed from the judgment below of Sullivan J in respect which I will make clearer subsequently in this judgment.[5]It is the Council's case on this appeal, as it was before the judge, that on three separate grounds - error of law, inadequate reasons and failure to take relevant matters into account - the planning inspector had erred in principle and was thus subject to review of his conclusion that Rachel and Elizabeth had retained their gypsy status.[6]The matters at issue and the background to the argument in this court can best be obtained from the relevant paragraphs of Mr Bradley's report to the First Secretary of State. At paragraphs 8 to 10 Mr Bradley set out the basic facts relating to the sites in question and to Rachel's and Elizabeth's family. He said:
"8. The three sites [there was a third site involved with which this court is not concerned] were all occupied by members of the Cooper family. The land was purchased by Mrs Rachel Cooper some 17 years ago as a contingency in case the family was no longer able to travel. I understand that the sites are now in separate ownership... Foxgrove is occupied by William and Rachel Cooper (aged 49 and 47), their son Mark (aged 17), their granddaughter Elizabeth Cooper (aged 12), and their son John, (aged 5). Mr and Mrs Cooper's oldest daughters, Esther and Mary, were both married in 2000 and live elsewhere. Blossom is occupied by Elizabeth Cooper (aged 29) (daughter-in-law of William and Rachel Cooper) and her four children. They are Luvisca (also known as Elizabeth) (aged 8), Rachel (aged 6), Billy (aged 3) and Tony (aged 1). Elizabeth Cooper is separated from her husband William who resides elsewhere. 9. Three of the children - John, Luvisca and Rachel - attend Felmore Primary School in Pitsea, while two - Mark and Elizabeth - have a home tutor. Rachel Cooper has a serious kidney problem that requires regular attendance at Great Ormond Street Hospital, while Luvisca has asthma. Tony was born with a heart condition which requires regular hospital checks. William Cooper has angina and hypercholonestmy, while Mrs Rachel Cooper suffers from arthritis, hypercholonestmy, diabetes and depressive illness. She requires toilet facilities frequently. 10. The family's major source of income is the building and gardening work undertaken by William Cooper and his sons. Because of his poor health, the sons do the heavier tasks. The work is undertaken within the Basildon area and rarely involves any overnight stay away from the appeal site, although members of the family regularly travel to gypsy fairs around the country. Mrs Rachel Cooper earns some money from the sale of craft items at these events."
Then, under the heading "The Case for the appellants" (Rachel and Elizabeth) Mr Bradley said this:
"21. The Cooper family are clearly gypsies, as shown by the evidence of Dr Acton who had known the family for many years. Although they no longer travel, they would like to do so but are frustrated by the lack of temporary sites. Their pattern of work has not changed since moving to the site, since they have always worked locally. The Council has not previously challenged their gypsy status. The family remains a cohesive group, as evidenced by William Cooper working with Thomas Cooper. The men continue to work for themselves, which is a feature of gypsy life, as is their wish to continue to live in caravans. They had only moved to the site when it became too difficult for them to live on the roadside. It was clear that the effect of withholding planning permission would be for the families to return to a life on the road. There was no evidence that the family had sought permanent housing. Therefore the appellants retain their gypsy status."
That, as I say, was the case made for Rachel and Elizabeth at the planning inspector's inquiry. It was the gloss put on the evidence heard at that inquiry on their behalf.[7]Under the heading "The Case for Basildon District Council" at paragraph 28 Mr Bradley set out the opposing submission made on behalf of the Council in relation to this matter of gypsy status:
"28. Mrs Rachel Cooper stated that she was from a gypsy family and had travelled all her life before settling on the appeal site seven years ago. However, while the Council accepts that members of the family may have been gypsies when they moved to the site, it considers that this gypsy status has been abandoned. It notes that apart from visiting annual gypsy fairs the Coopers do not travel outside the area. Their employment is locally based. This indicates a pattern of a permanent settled life with no prospect of ever resuming a nomadic life. The evidence given at the inquiry suggests that individual members of the family do not expect to resume travelling."
Whereas at the inquiry Basildon's submission was put in terms of an acceptance that members of the family may have been gypsies when they moved to the site, it is now accepted at this appeal by Mr Peter Miller, who appears on behalf of the Council, that subject to the question of abandonment of their status, both Rachel and Elizabeth had indeed been gypsies, they had not only lived a full nomadic life, but were of Romany descent.[8]At paragraph 38 under the heading "The Section 78 appeals", Mr Bradley began to consider what he describes as the four principal considerations on which his decision had to be based. The first of them (which is the only one with which we are concerned in this court) was "whether all the members of the Cooper family have gypsy status". In the next paragraph under the heading "Gypsy Status", Mr Bradley turned to that issue. At paragraph 39 itself he directed himself as to the law. He said:
"Gypsies are defined in Section 16 of the Caravan Sites Act 1968 as persons of a nomadic habit of life whatever their race or origin."
It is common ground that that is a correct formulation of the issue which Mr Bradley had to consider, namely, whether for these purposes Rachel and Elizabeth were persons of a nomadic habit of life.[9]Mr Bradley then went on to mention certain cases which had been cited to him, including Wrexham, albeit at that stage, of course, it was in the form of the judgment of Sullivan J. He then continued at paragraphs 40 and 41 with his findings as to gypsy status, findings which are critical for this appeal. "40. In my view it is helpful to distinguish between the adult occupiers of the three sites. I deal initially with Mrs Rachel Cooper. Mrs Cooper and her husband are both clearly from gypsy families and evidence was given that they had travelled in the Basildon area for many years before moving to Foxgrove, although at present they only travel to gypsy events. [10]" - that reference was a reference back to paragraph 10 in which Mr Bradley had made the findings which I have already recited. THe report continued:
"Mr Cooper's means of employment does not require any travelling, but this seems to have been the case before he settled on the site. Moreover, it would appear that both he and Mrs Cooper are not in good health and might well not be able to resume travelling for that reason. [9] They are further restricted by their stated wish to provide continuity of the education for their younger children and their granddaughter. I have therefore concluded that Mrs Cooper retains her gypsy status. 41. I now turn to Mrs Elizabeth Cooper. She is also from a gypsy family and travelled before settling on the site. She is a single mother with four young children and does not have any paid employment, as is traditional for women in gypsy families. Her ability to travel is restricted by the need to provide continuity of the education for her children and by their medical needs, particularly those of her daughter, Rachel. [9] Accordingly, in my opinion Mrs Elizabeth Cooper also retains gypsy status."
[10]I now turn to this court's decision in Wrexham, which is the linchpin of Basildon's appeal. In Wrexham, the inspector found that the gypsies in that case had given up their mobile life. As Auld LJ said at paragraph 25:
"He found that, although they had given up their mobile life, there was no clear evidence to suggest that [they] were not still gypsies for the purpose of planning control."
[11]At first instance in Wrexham the heart of the reasoning of Sullivan J was to be found in this passage, which Auld LJ cited at paragraph 30:
"I can see nothing in the judgments to suggest that had the Court of Appeal been confronted with what might be described as a 'retired' gypsy, it would have said that he had ceased to be a gypsy because he had become too ill and/or too old to travel in order to search for work. In my judgment such an approach would be contrary to common sense and common humanity. As a matter of common sense, the time comes for all of us, gypsy and non-gypsy, when we become too old and/or too infirm to work. Old habits, whether nomadic or not, die hard. It could not be right for a gypsy who had been living all his life on a gypsy caravan site or sites whilst he was still young enough and fit enough to travel to seek work to be told when he reached retirement age that [he] had thereby ceased to be gypsy for the purposes of the application of planning policy. It would be inhuman pedantry to approach the policy guidance in Circulars 2/94 and 76/94 upon that basis."
[12]The Court of Appeal in Wrexham rejected that approach of Sullivan J in favour of an approach which made it necessary to ask at each stage of a gypsy's life, and to be looked at as at the time of the planning decision, whether they had a nomadic habit of life or had abandoned a nomadic habit of life. In paragraph 57(2) Auld LJ, in setting out, by way of summary his conclusions, put the matter in this way:
"Whether applicants for planning permission are of 'a nomadic way of life' as a matter of planning law and policy is a functional test to be applied to their way of life at the time of the determination. Are they at that time following such a habit of life in the sense of a pattern and/or a rhythm of full-time or seasonal or other periodic travelling? The fact that they may have a permanent base from which they set out on, and to which they return from, their periodic travelling may not deprive them of nomadic status. And the fact that they are temporarily confined to their permanent base for personal reasons such as sickness and/or, possibly, in the interests of their children, may not do so either, depending on the reasons and the length of time, passed and projected, of the abeyance of their travelling life. But if they have retired permanently from travelling for whatever reason, ill-health, age or simply because they no longer wish to follow that way of life, they no longer have a 'nomadic habit of life'. That is not to say they cannot recover it later, if their circumstances and intention change, in keeping with Diplock LJ's observation that gypsy status in this sense is an alterable status. But that would arise if and when they made some future application for permission on the strength of that resumption of the status."
[13]Clarke LJ in a concurring judgment put the matter in this way at paragraph 60:
"The cases cited by Auld LJ support the following propositions, which I take from his judgment: i) The time at which gypsy status falls for decision is the date of the planning decision. ii) The decision in each case whether persons are 'of nomadic habit of life' within section 24(8) of the 1960 Act and, therefore within the policy set out in the Circulars, is one of fact and degree. iii) Depending upon the circumstances, a gypsy may retain his nomadic habit of life even though he is not travelling for the time being. iv) Where applicants for permission have retreated to their permanent base, the question for the decision-maker is essentially one of fact whether, in doing so, they have abandoned their nomadic way of life. 61. It seems to me to follow from those propositions that, depending upon the circumstances of a particular case, a person may continue to have a 'nomadic habit of life' even though he is not travelling for the time being and may not do so for some considerable time, perhaps because of illness or the educational needs of his children, provided that he has not abandoned his nomadic habit. As Auld LJ has observed, the decisions on the facts in Bungay and O'Connor are examples of a person and/or his family retaining his status notwithstanding that it was likely to be a considerable period before he or they were likely to resume travelling. Thus all depends upon the facts of the particular case."
Jonathan Parker LJ agreed with both judgments. In his decision below Sir Richard Tucker, as has been correctly pointed out, appears to have been under the misapprehension that paragraph 21 of the planning inspector's report (as well as paragraphs 40 and 41) contained the inspector's findings of fact and conclusions on the question of Rachel's and Elizabeth's gypsy status. It is truer to say that while paragraph 21 no doubt reflects, subject to the gloss of advocacy, the evidence before the planning inspector, it remains a statement of Rachel's and Elizabeth's case rather than the inspector's findings. Nevertheless, that paragraph, and the corollary paragraph 28 which sets out the Council's case on the question of gypsy status, are important and informative paragraphs for making it clear to the reader and to the First Secretary of State what were the relevant considerations and submissions on either side which had entered into the planning inspector's final decision. Because of the learned judge's error with regard to paragraph 21, however, I propose to look at the issues which arise on this appeal anew and freed from the judge's approach below.[14]In that light, I would first observe that the Council's three grounds of appeal, although separately expressed as respectively error of law, inadequate reasons and failure to take into account relevant matters, nevertheless essentially raise a single submission which is that, in the light of this court's decision in Wrexham, the planning inspector had gone wrong. It is nevertheless important to emphasise that there is no separate ground on the basis of perversity. It is not said that the planning inspector reached a conclusion which, on the evidence, was not open to him and which is subject to an attack on the basis of unreasonableness or perversity.[15]So far as error of law is concerned, it is hard to identify from Mr Miller's submissions or his skeleton argument exactly what error of law is in question, other than the planning inspector's failure, as is submitted, to take into account what is said to be Rachel's and Elizabeth's evidence at the inquiry relating to their future intentions. Thus, it is submitted that the inspector could not reach a proper conclusion as to gypsy status without taking into account the facts and circumstances that led to Rachel and Elizabeth ceasing to travel and without addressing whether they maintained an honest and realistically realisable intention to resume travelling.[16]That submission is essentially the same submission as is raised in slightly different forensic terms under the second and third grounds. In support of this way of putting the case (under whichever ground) Mr Miller sought to rely upon evidence in the form of a witness statement of Neil Costen, a principal planning officer of the Council, as to the effect of Rachel's and Elizabeth's evidence in cross-examination. It is suggested in that witness statement that Rachel had given evidence that she had nowhere else to go and had no future wish or intention to travel, and that Elizabeth had stated that she could not see herself travelling again even after her children had reached adulthood.[17]In my judgment, however, in the absence of an issue of perversity, and/or in the absence of it being necessary to make clear by way of evidence some consideration which had been wholly omitted from a report, it is not appropriate for one side of the factual dispute to put before a court, on a limited appeal of this kind, one view of the evidence before the decision-maker: otherwise every limited appeal on a question of law or by way of judicial review would immediately collapse into an attempt at a rehearing on disputed questions of fact.[18]That there was a disputed question of fact in relation to Rachel's and Elizabeth's intentions is wholly clear from the passages of the report which I have cited, and in particular paragraphs 21 and 28 of the report which set out the opposing cases of the parties. That the inspector plainly had before him the Council's submission that Rachel's and Elizabeth's gypsy status had been abandoned, and that he should regard their evidence as amounting to a pattern of permanent settled life with no prospect of ever resuming a nomadic life, and that the evidence given at the inquiry showed that the members of the family did not expect to resume travelling, is obvious from the express words of paragraph 28, which I have been tracking in my last remarks.[19]In these circumstances, I can deal with the first ground - error of law - reasonably quickly. As I say, no essential error of law has been identified. It has not been submitted that the inspector went wrong in law simply because he did not have the Court of Appeal's judgment in Wrexham before him (as distinct from that of Sullivan J) in addition to the other authorities which were cited to him. It is clear from paragraphs 21 and 28 (to which I repeatedly refer) that the essential issue which was emphasised in the judgments in this court in Wrexham, that of whether gypsies had abandoned their nomadic way of life, was the issue which had been put before the inspector and which he considered.[20]I therefore turn to Mr Miller's second ground of appeal which is that the inspector's reasons were inadequate. In this connection, I bear in mind that a decision letter such as that of the First Secretary of State's which incorporates the relevant parts of the inspector's report should be read as a whole in a reasonably flexible manner and not as a contract (see Save Britain's Heritage v No.1 Poultry Ltd [1991] 1 WLR 153 at 165G.[21]I also bear in mind that other passages in Lord Bridge's speech in that case at pages 165, 166 and 168 emphasise that while the reasons of a decision-maker must be proper, intelligible and adequate, nevertheless an appellant in the position of the Council (in this case) would have to satisfy a court that a lacuna (if any) in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from flaw in the decision-making process.[22]It is in the light of those principles that I deal with the submission under the second ground, which is that Mr Bradley's reasons in this case were insufficient. Again his reasons have to be read against the background of the alternative cases recited at paragraphs 21 and 28, where the correct issues had been identified. In the critical paragraphs (40 and 41) Mr Bradley finds that Rachel and Elizabeth had clearly come from gypsy families and had travelled in the Basildon area for many years. They therefore were, as is common ground on this appeal, at that earlier time of nomadic habit of life. Mr Bradley bore in mind that Mr Cooper's means of employment did not impose the requirement of any travelling, but that that had already been the case at a time it was common ground that Rachel and Elizabeth were of a nomadic habit of life, because that went back to a period before there was settlement on the site at Foxgrove.[23]Mr Bradley then went on to refer to the facts that both Rachel and her husband were not in good health and "might well not be able to resume travelling for that reason". The word "might" in that phrase is important. It was an implicit rejection of the Council's case that they did not wish or would not be able to resume travelling. Mr Bradley then went on to refer to further restrictions on their travelling by reference to a wish to provide continuity of education for their younger children. Similarly, in the case of Elizabeth, Mr Bradley accepted that she had been a traditional travelling gypsy, but that her ability to travel was currently restricted by the need to provide continuity of education for her children.[24]The use of the word "restriction" in those paragraphs against the background of the submissions made to him is really, in my judgment, only consistent with his acceptance of the case made on their behalf that, despite their temporary form of quasi-settlement at the sites, they would like to travel in the future, subject to the matters which were frustrating and restricting them in the present. There is, in my judgment, a plain, implicit acceptance of Rachel's and Elizabeth's case, and an equally plain rejection of the Council's case that they had abandoned their nomadic habit of life and were for a sufficiently material period of time unable or unwilling to return to life on the road. In addition, there was the finding that they presently regularly travelled to gypsy events. In my judgment, those are - albeit brief - adequate findings and reasons to support a conclusion which was ultimately a conclusion for the inspector as a matter of fact and degree as to the status of Rachel and Elizabeth at the relevant time. It was a conclusion which was taken plainly in the light of the relevant considerations having been argued before him, considerations which have been re-emphasised as the relevant ones by this court in Wrexham. I would therefore reject Mr Miller's second ground of appeal.[25]The third ground of appeal is simply that Mr Bradley failed to take relevant matters into account, namely, why they had ceased to travel and what their future intentions were. I have said enough in dealing with the earlier grounds to make it plain that, in my judgment, Mr Bradley was subject to no such failure. He considered the evidence and submissions on the evidence before him for the respective divergent cases made before him. Those were precisely the matters which Wrexham in the Court of Appeal re-emphasises have to be taken into account, and it is plain from the critical paragraphs (21, 28, 40 and 41) that Mr Bradley did so take them into account.[26]Therefore, for all those reasons, I would dismiss this appeal.[27]Let me say, as though it were part of my judgment which it need not be but it is important that I should say it, that this appeal in the short warned list has come on with speed. It has come on so fast that there has been concern as to whether adequate warning had been given to the respondents to the appeal and to Mr Willers who appears for them. In inquiries which I caused to be made yesterday when this problem appeared, it did appear that there may have been a failure, either in the post or in other ways, to ensure that the respondents' solicitors and counsel in this appeal had had the notice which even those litigants placed in the short warned list should appropriately get.[28]The court is therefore particularly grateful to Mr Willers, who has applied himself diligently overnight to supply the court with his skeleton argument and a bundle of authorities. In the course of the inquiries made by me yesterday, it appeared that there was continuing difficulty over the respondents' legal aid. It appeared that an application had been put in on behalf of Elizabeth but had not yet gone beyond the grant of funding advice for this appeal, and that no application has as yet been made on behalf of Rachel.[29]With the help of the Civil Appeals Office I was able to ensure that funding was extended to Elizabeth for the full appeal, and the same would have been true of Rachel if her application had formally been before the authorities. It is only because her application had not yet been submitted that legal aid for this appeal could not overnight be extended to her as well. I am sure that a formal application on behalf of Rachel will be submitted without delay, and I make this short further judgment in order to seek to ensure that there should be no difficulty in extending to Rachel, upon the prompt submission of her application, similar extension of legal aid for this appeal for her as well.

LORD JUSTICE LONGMORE: I do not consider that if the Court of Appeal in Wrexham County Borough v The National Assembly ofWales had been dealing with a carefully reasoned report of the kind which we have before us on the appeal in the report of Mr Bradley (the essential provisions of which have been set out by my Lord) they would have thought it necessary for the applications in that case to be sent back to another inspector for reconsideration.

[31]Mr Bradley has made relevant findings of fact and dealt with the parties' arguments. There is nothing left out which he should have taken into account, nor has he taken into account any matter which he should not have taken into account. I cannot see any error of law in his report and I agree with my Lord that these appeals must be dismissed.[32]MR JUSTICE FORBES: I agree with both judgments and have nothing to add. (Appeal dismissed; further orders suspended for seven days).