Doran v Secretary of State for Communities and Local Government [2011] EWCA Civ 1798

Case No C1/2010/1679(A)(B)[2011] EWCA Civ 1798
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION, DIVISIONAL COURT
(MR JUSTICE CRANSTON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 19 July 2011
Before
LORD JUSTICE PILLLORD JUSTICE ETHERTONLORD JUSTICE PATTEN
Between
DORANAppellantTHE SECRETARY OF STATERespondentsFOR COMMUNITIES AND LOCAL GOVERNMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Mark Willers and Miss Justine Thornton (instructed by Messrs Pierce Glyn Solicitors) appeared for Appellant.Ms Sara Shiekh and Mr Stephen Whale appeared for Respondent.
Judgment
[1]This is an appeal against a decision of Cranston J in a judgment given on 21 June 2010 whereby he refused an application by Mr Felix Doran (“the appellant”) to quash a decision of the Secretary of State for Communities and Local Government ("the Secretary of State"). The Secretary of State had dismissed an appeal by the appellants from a decision of the Central Bedfordshire District Council (“the council"). The council had refused planning permission for the change of use of Plot 7, Site B, the Stables, Stanbridge Road, Great Billington, Near Leighton Buzzard to station static and touring traveller caravans on the site.[2]The decision of the Secretary of State was made by an Inspector who conducted a local public inquiry on 28/29 April and 11 May 2009 and made a site visit on 11 May. He heard evidence over a three-day period. The decision letter is dated 21 July 2009.[3]The site is in the Green Belt. It was not an issue at the inquiry but, by reference to paragraph 49 of circular 01/2006 and planning policy guidance 2, the proposal represented inappropriate development in the Green Belt. The Inspector stated that he attached substantial weight to the harm to the Green Belt. He went on to consider the issue "whether the harm to the Green Belt by reason of inappropriateness and any other harm is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify development".[4]The Inspector concluded, at paragraph 58, that the harm to the Green Belt and the character of the area that would be caused by the grant of a permanent planning permission was not clearly outweighed by other considerations, including the general need for additional gypsy and traveller sites and the personal circumstances of the appellant and other potential buyers of the site.[5]The Inspector went on to consider whether it was appropriate to grant planning permission for a limited period, that is a temporary permission. Paragraphs 45 and 46 of the circular 01/2006 provide:
“45. Advice on the use of temporary permissions is contained in paragraphs 108 – 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission. 46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay.”
[6]General guidance about temporary permissions had earlier been given in circular 11/95, which is cited in paragraph 45 of circular 01/2006. It considered, at paragraph 109, situations where conditions could not be devised to safeguard amenities and provided: “if the damage to amenity cannot be accepted then the only course open is to refuse permission”.[7]Paragraph 110 of 11/95 provided:
"Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that intention, or because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified. For example, permission might reasonably be granted on an application for the erection of a temporary building to last seven years on land which will be required for road improvements eight or more years hence, although an application to erect a permanent building on the land would normally be refused."
[8]In relation to a temporary permission the Inspector stated:
“59. Turning to the possibility of a limited period planning permission, similar considerations apply, except that the duration of the harm to the area would be limited. Although the application was for full planning permission, it was indicated that a limited period planning permission would be acceptable to the current occupiers (though not to the proposed additional occupiers) in the context of the advice in the Circular. The Circular deals with situations where there is an unmet need and no available site provision but where, at the end of the period, there is a reasonable expectation that sites will become available through the DPD process. The Circular advises that in such cases consideration should be given to the grant of a temporary permission, and that substantial weight should be given to the unmet need. 60. In this case, there is an agreed unmet need for sites, although the Council argues that this may be met, in whole or in part, by the grant of planning permissions during the emergence of the PDP. Despite the lack of clarity regarding the DPD position at the end of any temporary period, the unmet need for sites and other circumstances are important considerations. However, at this stage it is unclear what effect the DPD process will have on site provision, as it is not currently clear if additional sites will be needed in the light of the Council’s argument regarding existing and future private sites. Under these circumstances, there is no reasonable expectation of a change in circumstances within a definite and foreseeable period. 61. The facts in favour of the proposal have to be balanced against the significant harm to the area which would result from the grant of planning permission – even for a limited period. The objections to the proposal are serious and could not be overborne by granting a limited period permission and/or a permission conditioned in any other manner. There are serious environmental objections to this proposal, and these can only be safeguarded by dismissing the appeal. I consider that the refusal of limited period planning permission is a necessary and proportionate response in the circumstances and hence would not represent a violation of the rights of the appellant and the other intended occupiers.”
The Inspector added, at paragraph 62, that, in the 2005 decision relating to a wider area including the appeal site, and also in a very recent decision in relation to a site adjoining the appeal site, the Secretary of State had refused permission on Green Belt grounds.[9]On behalf of the appellant it is submitted that the Inspector's finding at the last sentence of paragraph 60 is inconsistent with submissions of the council about the progress of the DPD ("the Development Plan Process"). He failed to take account of the material consideration that the council expected site allocations in place by 2011.[10]It is further submitted that his finding was inconsistent with the finding of an Inspector on an adjoining site, a finding with which the Secretary of State agreed, "that a temporary permission should be considered". Although refusing permission on that site, the Secretary of State first "carefully considered" whether a temporary permission ought to be granted. Such consideration was required in the present case, it is submitted.[11]At paragraph 61 the Inspector proceeded to consider, on the merits, whether a temporary permission should be granted. Thus, the first submission of Ms Thornton, on behalf of the appellant, is that the Inspector erred in law in failing to have regard to paragraphs 45 and 46 of the circular and, further, in failing to take account of the local planning authority's own submissions on the effect of those paragraphs.[12]Ms Thornton's second submission is that the error of law in paragraph 60 tainted or infected the Inspector's approach to the planning merits of whether to grant temporary permission. In relation to the first point Ms Thornton relied on the written closing submissions to the Inspector of counsel acting on behalf of the counsel, Ms Sheikh, who also appears for the council at this hearing.[13]Ms Sheikh helpfully provided written submissions for the Inspector at the close of the inquiry. Paragraph 31 provided: "In this case, only Mr and Mrs Doran are on the appeal site and there is an unmet need for them although considerable progress has been made and is being made towards meeting that need. The DPD process is underway and it is expected that a site allocations DPD for gypsies and travellers is expected to be in place by 2011. To that extent it can be seen that the preconditions for a temporary permission for Mr and Mrs Doran are met. However, the matter does not end there.”[14]Ms Thornton relies on the acceptance by the council that paragraphs 45 and 46 did apply. The Inspector ought not, as Ms Thornton submits he did, have found to the contrary. In relation to of paragraph 31, Ms Sheikh submits that it should be read in the context of the following paragraphs as presaged by the words already read, "the matter does not end there". "32. Having regard to Circular 11/95 referred to in paragraphs 45-46 of Circular 01/06 temporary permission is not appropriate where the harm is unacceptable (see paragraph 109). As is clear from the Council's evidence in this inquiry and indeed the SoS's previous assessment of harm -- there is harm to amenity. That harm is not acceptable. This is a case where temporary permission is not therefore appropriate notwithstanding the contents of paragraphs 45-46 of 01/06.” Those paragraphs relate to the consideration of temporary permission on the merits.[15]As to the Inspector's paragraph 60, Ms Shiekh submits that the following two paragraphs of the submission are relevant: “33. In terms of unmet need – it is also noteworthy in that context that even on the EIP figure of 50 the former South Bedfordshire district council's area [now inherited by the council] -- the Council is regularly making vast progress in meeting that need. At the time of this inquiry 32 pitches have been provided. It is likely before the determination of this appeal that further pitches will be granted permission to meet need. Therefore, the unmet need itself is diminishing and accordingly it is proper to have regard to the progress the Council has and is making in this context when considering the weight to give to unmet need. 34. Overall, unmet need is diminishing. Having regard to the significant harm to the Green Belt and character and appearance and lack of any material change in circumstances in that context since May 2005 it is submitted that the inquiry can properly conclude that this is a case where temporary permission is not acceptable."[16]Thus, submits Ms Sheikh, on accepting that criteria for the application of paragraphs 45 and 46 are present, the Inspector was also required to have in mind the progress being made and likely to be made in the future towards meeting needs.[17]The written submissions of Ms Sheikh are consistent with the evidence given on behalf of the council at the inquiry by Mr Anderson. The witness for the council stated at paragraph 5.22: “Against the above background it is considered that South Bedfordshire District Council has made considerable progress towards addressing the identified need and, indeed, has more than achieved that objective on an annualised basis. Indeed, without prejudice the decisions of the successor Local Planning Authority in relation to any anticipated applications, it is likely that additional pitches could well be approved in the next few months bringing the total close to, or even in excess of, the minimum number of fifty recommended in the EIP Panel Inspectors’ Report."[18]Ms Thornton submits that in paragraph 60 the Inspector found that paragraphs 45 and 46 in the circular did not apply and he erred in law in doing so. Moreover, he ignored the submissions of the authority that they did apply. The last sentence of paragraph 60 amounts to a statement that the criteria for temporary permission did not exist. He found there would be no change of circumstances as contemplated in the circular whereas plainly, it is submitted, the criteria did exist. Contrary to Ms Thornton’s submissions, I find that the wording in that last sentence comes form paragraph 110 of circular 11/95, but that paragraph is to be read with paragraph 46 of 01/06 and so does not defeat Ms Thornton's point. It was a basic error of law, Ms Thornton submits, to fail to apply an essential plank of policy in relation to temporary permissions.[19]For the Secretary of State, Mr Whale submits that the Inspector did find that paragraphs 45 and 46 applied. He set out the test in those paragraphs, at paragraph 59 of his determination. At the beginning of paragraph 60 he referred to the agreed unmet for sites and was not in that paragraph holding that the criteria did not exist and the circular did not apply. The difficulty with that submission is that in the last sentence of paragraph 60 the Inspector appears to state that the criteria for temporary permission did not exist, and I repeat the sentence:
"Under these circumstances there is no reasonable expectation of a change in circumstances within a definite and foreseeable period."
[20]Ms Sheikh submits that paragraph 31 in her submissions should be read with the following paragraphs. In paragraph 60 the Inspector referred, applying the evidence and submissions of the council, to planning permissions likely to be granted before the DPD emerged and during that process. His last sentence should be read in the light of that.[21]At paragraph 60 the terminology, which Cranston J described as infelicitous, is very difficult. The last sentence is out of place with what has gone before. The court should attempt to find what meaning the Inspector intended. It is a careful determination following the hearing of considerable evidence and expert submissions.[22]My approach is similar to that of Ms Sheikh. The Inspector had in mind the emerging planning permissions and in my view added the last sentence in paragraph 60 only to demonstrate that this was not a paradigm paragraph 45 and 46 case in which, for example, substantial unmet need now will be met by substantial provision in the foreseeable future. I cannot accept that the Inspector was resiling from what he has said earlier. For example, at paragraph 52 and in the first sentence at paragraph 60, he stated that there was an unmet need for sites. He carefully set out the test in paragraph 59, and it is in my judgment not a real possibility that he had forgotten and ignored all that by inserting the last sentence in paragraph 60.[23]In my judgment the Inspector was merely indicating, and did so by reference to wording found in paragraph 110 of 11/95, that there would be no dramatic change in three to four years’ time. He was accepting the local authority's evidence and submissions that permissions could be expected to emerge in the meantime. That limits the extent of the unmet need. It does not involve the erroneous approach that unmet need was not a factor to be considered. In my judgment the Inspector did consider the question of unmet need. That being so, the substance of Ms Thornton's second submission falls away because it is based essentially, as presented orally, on the suggestion that the Inspector's approach on the merits of temporary permission was tainted by the error of law claimed to be present.[24]Having found that paragraphs 45 and 46 did not operate, he could not be expected, it is submitted, fairly to adjudicate on the need for temporary permission. The Inspector did go on at paragraph 61 to consider the merits. In my view he did having taken a correct view of the circular, but I proceed to consider the merits in any event. He had to consider whether this was a case where temporary permission was appropriate; the damage to the environment would be less because the permission is temporary. In the earlier part of his determination, the Inspector had carefully considered the environmental arguments, as well as the personal circumstances of the occupants, when assessing whether a permanent permission should be granted. The circumstances are considered, for example, at paragraph 57. His decision as to permanent permission is not now challenged.[25]Ms Thornton refers to paragraph 12 of circular 01/2006 and in particular to the statement of the main intentions of the circular. These include, at sub-paragraph (i):“to help to avoid gypsies and travellers becoming homeless through eviction unauthorised sites without an alternative to move to”.[26]Ms Thornton refers to the decision of this court in Wychavon District Council v the Secretary of State 2008 EWCA Civil 692. At paragraph 12, Carnwath LJ, with whom the Master of the Rolls and Wilson LJ agreed, stated in relation to the circular:
"These parts of the advice must also be seen in the context of the general intention to avoid gypsies becoming homeless through eviction from unauthorised sites where no alternatives are available."
An Inspector must have particular regard, it is submitted, to avoiding the risk of homelessness when it is known that pitches will be available in the foreseeable future.[27]In my judgment the Inspector did apply the correct test, and sufficiently consider the evidence, at paragraph 61. It must be read in the light of his earlier detailed consideration on the question of permanent permissions. I agree that could be cases where the balance in favour of a temporary permission is tipped by an application of the circular. There could be cases where, in applying the policy statements, a permanent position would not be justified but a temporary permission would be.[28]In paragraph 61 the Inspector has plainly stated his conclusion. In my judgment it is a sound conclusion, whether or not he has erred at paragraph 60. He has stated in terms, referring to the limited period claimed:
"The objections to the proposal are serious and could not be overcome by granting a limited period permission and/or a permission conditioned in any other manner. There are serious environmental objections to this proposal, and these can only be safeguarded by dismissing the appeal."
[29]That was a planning conclusion which the Inspector was entitled to reach. There will be cases where even a temporary permission, applying the correct test in the circular, cannot be granted, and the Inspector was entitled to conclude that this was one such. He was also entitled to have regard, as he stated in paragraph 62, to the other decisions of Secretary of State to which I have referred. The Inspector was entitled, when exercising his planning judgment, to decide that the objections to the proposal are serious and that serious environmental objections can only be safeguarded by dismissing the appeal.[30]The Inspector confirmed that at paragraph 64 when he applied the correct test and concluded "very special circumstances to justify the development therefore do not exist. For the reasons given above I conclude that the appeal should be dismissed.”[31]In my judgment no error of law has been demonstrated and I would dismiss the appeal.[32]I agree.[33]I also agree the appeal should be dismissed, but for different reasons than those given by my Lord. The last sentence of paragraph 6 in the decision letter is formulated in terms of paragraph 110 of circular 11/95. That circular states that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of such a permission.[34]The inspector in this case found that there was no reasonable expectation of such a change within a definite and foreseeable period. Despite the best efforts of Mr Whale and Ms Sheikh, I am unable to read that sentence as anything but a determination that the conditions to grant a temporary planning permission set out in circular 11/95 and by derivation in paragraphs 45 an 46 of circular 01/06 were not in this case satisfied.[35]But the inspector did not stop there. He went on to conduct a balancing exercise as part of which he gave consideration to what he described as the factors in favour of the proposal. On the clear reading of paragraph 1 of the decision letter taken in conjunction with his earlier treatment of the factors relevant to a permanent permission, it seems to me that they must have included not only the appellant's personal circumstances, but the wider question of whether their prospects of homelessness should override the undesirability of unauthorised green belt development if only a temporary permission were to be granted. Attractive as her submissions have been, I am not in the end persuaded by Ms Thornton that the inspector's conclusions on that issue were tainted or prejudiced by his decision on whether the circular conditions apply.[36]I have come to the conclusion that, even had he reached a different decision on that point, his determination in relation to the outcome of the appeal would have been the same.[37]For those reasons I, too, would dismiss this appeal.

Order

Appeal dismissed