O'Connor v Secretary of State for the Communities and Local Government & Anor [2013] EWCA Civ 263

Case No C1/2012/0920[2013] EWCA Civ 263
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JOHN HOWELL QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 7 th February 2013
Before
LORD JUSTICE LAWSLORD JUSTICE LEWISONLORD JUSTICE McCOMBE
Between
O’CONNORAppellantTHE SECRETARY OF STATE FOR THE COMMUNITIES AND LOCAL GOVERNMENT & ANRRespondents
(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 Stephen Cottle (instructed by Garden Court Chambers) appeared for Appellant.Mr Paul Greatorex (instructed by Gray’s Inn Square) appeared for Respondent.
Judgment
[1]Mrs O’Connor is an Irish traveller who owns a piece of land near the village of Queen Charlton in the Bristol and Bath Green Belt. She applied for planning permission to change the use of the land to that of a private gypsy and traveller caravan site. The proposal involved the stationing of two single-unit static caravans and three touring caravans. Her application was refused by Bath and North East Somerset Council, and her appeal against that refusal was dismissed by Mr James Ellis, the Planning Inspector. She applied to the Administrative Court to quash that decision but Mr John Howell QC dismissed her application. His judgment is at [2012] EWHC 942 (Admin). With the permission of Elias LJ she appeals.[2]It is common ground that(1) in making planning decisions the decision maker must have regard to the development plan and to any other material considerations;(2) any determination must be made in accordance with the development plan unless material considerations indicate otherwise;(3) statements of national planning policy are material considerations;(4) the statements of national planning policy that are relevant to our case are PPG2, which deals with development in the Green Belt; Circular 01/2006, which deals in planning for gypsy and traveller caravan sites; and Circular 11/95, which deals with conditions on planning permissions;(5) the interpretation of policies, whether contained in a development plan or promulgated at national level, is a question of law which the court must resolve in case of dispute;(6) in principle, having identified the material considerations, the weight to be given to them is a matter of planning judgment for the decision maker, with which the court will not interfere unless the judgment is perverse;(7) the decision maker must give adequate reasons for his decision sufficient to enable the reader to understand what he has decided and why;(8) a Planning Inspector’s decision letter must be read in good faith, but it must not give rise to substantial doubt as to whether he erred in law, for example by misunderstanding a relevant policy or some other important matter, or failing to reach a rational decision on relevant grounds.[3]The development plan in our case contained policy GB1, which begins by stating:
“Within the Green Belt, as shown on the proposals map, permission will not be given except in very special circumstances.”
And then certain exceptions to that policy are stated. The relevant part of PPG 2 provides that there is a general presumption against inappropriate development within Green Belts and that such development should not be approved “except in very special circumstances”. Annex E specifically states that “Gypsy sites are not normally appropriate in Green Belts. PPG 2 also says:
“Inappropriate development is, by definition, harmful to the Green Belt. ... 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.”
[4]The relevant policy about gypsy sites in force at the date of the appeal was Circular 01/2006. Its main thrust was to encourage the provision of gypsy sites through development plan documents, and one of its subsidiary policy aims was to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to. Paragraphs 45 and 46 of the Circular stated as follows:
“45. Advice on the use of temporary permissions is contained in paragraphs 108 to 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises 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 planning permission. 46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD [development plan documents]. In such circumstances, local planning authorities are expected to give substantial weight to an 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.”
Paragraph 49 of the same circular reinforces the general presumption against inappropriate development within Green Belts, and goes on to say that:
“National planning policy on Green Belts applies equally to applications for planning permission for gypsies and travellers and the settled population.”
This court has held that although this paragraph does not specifically refer to the paragraphs on temporary permissions, there is nothing to suggest that this part of the advice is inapplicable to Green Belt applications: see Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692, [2009] PTSR 19 at [12].[5]Paragraph 109 of Circular 11/95, dealing with temporary planning permission, deals first of all with minerals permission, and points out that in deciding whether a temporary permission is appropriate in other cases, three main factors should be taken into account. The first is that it will rarely be necessary to give temporary permission to an applicant who wishes to carry out development which conforms with the development plan. Next, it is undesirable to impose a condition requiring demolition after a stated period of a building which is intended to be permanent. And lastly:
“The material considerations to which regard must be had in granting any permission are not limited or made different by a decision to make the permission a temporary one. Thus, the reason for granting a temporary permission can never be that a time limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise, they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities. If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted, then the only course open is to refuse permission. These considerations will mean that a temporary permission will normally only be appropriate. Either way, the applicant proposes temporary development, but when a trial run is needed to order to assess the effect of development on the area.”
[6]At the hearing before the Inspector, Mrs O’Connor had the benefit of representations made on her behalf by Dr Murdoch, an experienced planning consultant. His representations quoted from Circular 01/2006, and in quoting from paragraph 46 he put the reference to “substantial weight” in bold-faced type. He devoted a further two paragraphs to the point in his representations. The Inspector concluded that the proposal would result in material harm to the Green Belt, which could not be overcome by a landscaping scheme. He considered Circular 01/2006. At paragraph 15 of his decision letter, he said that he regarded the circular “as an important material consideration for the purposes of my determination”. His reference to Circular 01/2006 as an important material consideration did not single out paragraph 45 but referred to the circular as a whole. The Inspector noted that the planning authority had started work on allocating gypsy sites, and that the DPD, which would seek to provide 19 pitches, was likely to be adopted in 2012. In fact, we are told that the timetable has slipped and that it is unlikely now to be adopted until 2014.[7]The Inspector noted also that there was a general need for sites in the area, in addition to a wider sub-regional need. He then turned to consider Mrs O’Connor’s personal circumstances as well as those of other family members. He then posed himself the question in the following terms: “Whether the harm 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 the development.”"27. As I have indicated, I must attach substantial weight to the harm to the Green Belt by reason of the proposal's inappropriateness. I have also found that the proposal would result in significant harm to the openness of the Green Belt. In addition, the proposal would cause material harm to the local landscape (which is in the Green Belt) and limited harm to the Queen Charlton Conservation Area.28. However, to be weighed against these factors are a number of considerations in favour of the proposal. These are the need for additional gypsy site in the Council's area, that the shortage in unlikely to be addressed until at least two years' time, the possibility that some of the sites to be allocated by the DPD could be in the Green Belt, the Appellant and her family's need for Gypsy accommodation, the absence of any identified site to which they could move, the personal circumstances of Mrs O'Connor and her family in terms of health and education, and the hardship which they could face by eventually being made homeless. I recognise that this would represent a substantial interference with the home and family life of the Appellant and her family. I am also mindful of the duties placed upon me by the legislation relating to race relations. In particular, I am aware that a return to the roadside existence could have a negative impact on race relations.29. In my judgment, however, these material considerations in favour of the proposal, even when added together, would not clearly outweigh the substantial harm which the proposal would cause, as mentioned in paragraph 27."[8]There is no complaint about the Inspector’s decision on the question of permanent planning permission, nor the reasoning by which he reached his decision. On the question of temporary planning permission, the Inspector said:
"30. Circular 11/95 states that a temporary permission may be justified when it is expected that the planning circumstances will change in a particular way at the end of the temporary period. Circular 01/2006 indicates that, where there is an 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, decision makers should give consideration to granting temporary permission. Circular 11/95 also states that the material considerations to which regard must be had in granting permission are not limited or made different by a decision to make the permission a temporary one, and that the reason for granting a temporary permission can never be that a time-limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise, they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities and, if this is not possible, the only course open is to refuse permission. 31. On the basis of the information available, I am satisfied that the planning circumstances are likely to change within Bath and North East Somerset within the next two to three years as work on the DPD progresses and sites are subsequently brought forward following its adoption. However, the harm that the proposal would cause to the Green Belt and to the local landscape, would be unacceptable, even for a temporary period of, say, two or three years. The harm could not be adequately mitigated by conditions. As a result, temporary permission in not justified."
His ultimate conclusion in paragraph 34 was this:
“My overall conclusion, therefore, is that the other material considerations in favour of the proposal do not clearly outweigh the harm to the Green Belt and other harm that I have found. I have given consideration to a temporary planning permission but I have concluded that this would not be appropriate as it would not overcome the overriding planning objections that have been identified. Consequently, the appeal proposal would not be justified on the basis of very special circumstances.”
[9]The essential point that Mr Cottle makes on behalf of Mrs O’Connor, is that the result of paragraph 46 of Circular 01/2006 is that two quite separate balancing acts are required, one in relation to permanent planning permission and the other in relation to temporary planning permission. When carrying out the first of those balancing acts, the relative weight to be placed on material considerations is a matter of planning judgment. But when carrying out the second, paragraph 46 clearly prescribes that substantial weight must be given to unmet need in deciding whether to grant temporary planning permission. In our case, the Inspector has not given substantial weight to that factor, or at least has not said that he did, in which case there is serious doubt about whether he correctly applied the policy. It is, to my mind, obvious that the Inspector appreciated that there were two separate balancing acts to be performed. That is why he answered the question posed in two parts. In his consideration of temporary permission he referred specifically to Circular 01/2006. He had already said that he regarded it as an important material factor. The particular reference was to paragraph 45, although without specifically referring to the paragraph number he did not expressly allude to paragraph 46. But the express reference to Circular 01/2006 shows clearly to my mind that the Inspector appreciated that that Circular was, as he put it, an important material consideration on the question of temporary planning permission, whereas it had not been in relation to permanent planning permission. It follows, therefore, in my judgment that the Inspector did indeed perform two balancing acts. But in carrying out the second of those balancing acts, the Inspector did not expressly say that he had given substantial weight to the unmet need. Was that fatal?[10]Mr Cottle says that he carried across the same factors as he had weighed in considering the question of permanent planning permission. Since he had not said, in considering permanent planning permission, that he gave unmet need substantial weight the first time round, it must follow that he did not give unmet need substantial weight the second time round, and therefore that he must have misapplied paragraph 46.[11]The deputy judge said that there was nothing to indicate that the Inspector in practice did not give substantial weight to that need. I agree. There is nothing to suggest that the Inspector did not give substantial weight to unmet need in considering both permanent permission and temporary permission. But Mr Cottle points to the fact that as regards Green Belt considerations, for example, the Inspector did use the word “substantial”, whereas in considering personal circumstances he did not. But that, to my mind, is an over-literal reading of what the Inspector decided. He considered unmet need, he gave it substantial weight, and he also considered the impact on Mrs O’Connor’s personal circumstances of the effect of refusing planning permission.[12]As HHJ Curran QC pointed out in London Borough of Bromley v Secretary of State for Communities and Local Government [2008] EWHC 3145 (Admin) at paragraph 39, the fact that an Inspector does not make a specific reference to a paragraph in a policy does not demonstrate that he left it out of account. In the Wychavon case, Carnwath LJ said that decisions should be respected unless it is quite clear that the decision maker has misdirected himself in law. In my judgment, Mr Cottle has not succeeded in showing that the Inspector did misdirect himself in law.[13]The subsidiary point is that the Inspector misapplied the advice given in paragraph 109 of Circular 11/95. Mr Cottle says the Inspector jumped from the conclusion that harm could not be mitigated by conditions to the conclusion that temporary planning permission should be refused. But that, he says, misapplies Circular 11/95, because the Inspector did not revisit the question whether special circumstances existed in the light of a requirement that substantial weight be given to unmet need. But on a fair reading of the Inspector’s decision I do not consider that that is what he did. He said in paragraph 31 that the harm would be unacceptable, even for a temporary period. This, to my mind, reflects the advice in the Circular that temporary permission should be refused if the damage to the amenity cannot be accepted. It is reinforced by the Inspector’s ultimate conclusion that temporary permission would not overcome what he described as the overriding planning objections.[14]I would dismiss the appeal.[15]I agree. As appears from the passage in the Inspector’s decision letter (paragraph 15) and the submissions made to the Inspector from the appellant’s planning consultant, it seems to me that paragraph 46 of Circular 01 of 2006 was central to the argument before the Inspector and it is obvious that he had the matter very much in his mind. In my judgment, it is unrealistic to think that the Inspector was not fully aware of the substantial weight to be afforded to the unmet need in cases such as this, even with regard to temporary planning permission. Once that was apparent, thereafter the decision becomes one of planning judgment, which the Inspector took. The deputy judge was, in my view, entirely correct to dismiss this appeal, and I too would dismiss the appeal before us.[16]I agree with both judgments. To my mind, this case betrays what Sir Thomas Bingham MR deprecated as “exegetical sophistication”: Clarke Homes Limited v Secretary of State, Volume 66, Property and Compensation Reports 263 at 272.

Order

Application refused.

Cited in 2 later judgments