Lee, R (on the application of) v First Secretary of State [2003] EWHC 3235 (Admin)

Case No CO/4124/2003[2003] EWHC 3235 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 16th December 2003
Strand
London WC2
B E F O R E:
MR JUSTICE HARRISON
Between
THE QUEEN ON THE APPLICATION OF WILLIAM LEEClaimant-v-
Between
FIRST SECRETARY OF STATEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M WILLERS (instructed by Peter Kingshill & Co) appeared for CLAIMANTMR T MOULD AND MS G WARD (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE HARRISON: Background The claimant and his family are Romany gypsies. He applies, pursuant to Section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), to quash a decision by the First Secretary of State to dismiss his appeal against Dartford Borough Council's refusal of his application for planning permission. The claimant's application was for planning permission to use land at Sauleskalns, Ship Lane, Sutton-at-Hone, Dartford in Kent as a small family gypsy caravan site for himself and his wife and family, his brother John and his wife and children, and his other brother Joseph and his wife and children. He had purchased the site in July 2002 and moved into it with his family shortly afterwards without first obtaining planning permission.[2]The First Secretary of State appointed an inspector, Elizabeth Fieldhouse, to hold a public local inquiry into the claimant's planning appeal and to report to him with her conclusions and recommendation. The inspector held the public inquiry on 23rd and 28th April 2003. She recommended that the claimant's appeal should be dismissed, setting out her detailed conclusions in support of that recommendation between paragraphs 58 to 81 of her report. By a letter dated 22nd July 2003, the First Secretary of State agreed with the inspector's recommendation and dismissed the appeal for the reasons given in his decision letter. His overall conclusion was that the proposed use constituted inappropriate development in the Green Belt and was contrary to development plan policies for the protection of the Green Belt. He did not consider that there were very special circumstances which justified allowing inappropriate development or which constituted material considerations of sufficient weight to indicate that he should determine the appeal other than in accordance with the development plan.[3]The claimant now challenges the validity of the decision on three grounds. Firstly, the Secretary of State's consideration of the weight to be attached to policy H22 of the emerging Dartford Local Plan Review; secondly, his consideration of the claimant's personal need for accommodation for himself and his family; and thirdly, his consideration of the grant of temporary planning permission. First ground of challenge - policy H22 Dealing with the first ground of challenge, policy H22 of the emerging Local Plan Review is a criteria-based policy for considering proposals for gypsy caravan sites. It states that proposals for gypsy caravan sites will only be permitted where seven stated criteria are met. It also states that such proposals will not be permitted in the Green Belt. The Local Plan Review has reached the deposit stage and a public inquiry into objections to it is to take place in September 2004. The evidence was that there had been no objection to the current version of policy H22. The point was made to the inspector by the claimant that the Council had only consulted one of the gypsy organisations referred to in Annex A of Circular 1/94, namely the National Gypsy Council, but, as the inspector pointed out, the Circular does not suggest that all the relevant organisations have to be consulted.[4]Paragraph 48 of PPG1 provides that the weight to be attached to policies in emerging development plans increases as successive stages are reached, and that, where a plan has been deposited but no objection has been lodged to a relevant policy, considerable weight can be attached to that policy because of the strong possibility that it will be adopted. Consequently, the inspector stated in paragraph 63 of her report that, in line with the advice in policy PPG1, considerable weight may be attached to the emerging policy H22 because it had not been the subject of any objection. In paragraph 4 of his decision letter, the Secretary of State expressly agreed with that conclusion. It is that conclusion which forms the subject matter of the first ground of challenge.[5]Mr Willers, who appeared on behalf of the claimant and who represented the claimant at the public inquiry, submitted that the inspector and the Secretary of State failed to give any or any adequate and intelligible reasons for concluding that considerable weight should be given to policy H22. It had been submitted at the public inquiry on behalf of the claimant that little, if any, weight should be attached to policy H22 on the ground that it failed to conform with national policy contained in paragraph 12 of Circular 1/94.[6]Paragraph 12 of Circular 1/94 states that local plans should, wherever possible, identify locations suitable for gypsy sites and that, where that is not possible, they should set out clear, realistic criteria for suitable locations as a basis for site provision policies. They should also make a quantitative assessment of the amount of accommodation required. It was pointed out on behalf of the claimant that local authorities had subsequently been reminded by Government of that advice by way of letters to Chief Planning Officers in May 1998 and November 1999, and the advice had been repeated in paragraph 4.14 of PPG12.[7]The Council in this case accepted that it had not made a quantitative assessment of the need for gypsy sites and that the local plan did not identify sites. As I have said, it was submitted to the inspector that little, if any, weight could be attached to policy H22 in the light of the failure to comply with the advice in Circular 1/94.[8]The ground of challenge to this court is that the inspector and the Secretary of State simply failed to deal with that argument. Both the inspector and the Secretary of State had concluded that considerable weight should be attached to policy H22 in the light of the advice in PPG1, without addressing the claimant's argument that it should be afforded little weight due to the failure to comply with the advice in Circular 1/94, as repeated in PPG12.[9]I have considerable sympathy with that point. The weight to be attached to policy H22 was a principal important controversial issue in the case, in respect of which adequate reasons were required. The Secretary of State did, however, give his reason for attaching considerable weight to policy H22; namely, that he was following the advice in PPG1 in the light of the stage that the Local Plan Review had reached without any objection having been made to policy H22. He does not have to deal expressly with all the material considerations.[10]In my view, though, it would have been better if the inspector and the Secretary of State had dealt expressly with the claimant's argument that limited weight ought to be attached to policy H22, if for no other reason than to avoid the claimant feeling aggrieved that his argument had not been addressed. It is, however, right to say that the inspector did refer in terms, in paragraph 35 of her report, to the claimant's argument that little, if any, weight should be accorded to policy H22 in the absence of a quantitative assessment underlying the policy.[11]Perhaps more importantly, the inspector referred in her conclusions to both of the matters underpinning the claimant's argument. In paragraph 67 she referred to the fact that the Council accepted that it had not carried out any assessment of the needs of travellers, and she concluded in that paragraph that there was an unmet need for additional gypsy sites in the Borough. Furthermore, in paragraph 68 she specifically referred to the fact that no proposals had been made for locations for gypsy sites in the Local Plan Review. Having referred to those matters, she concluded at the end of paragraph 68 that the unmet need for gypsy sites in the Borough did not, on balance, amount to a very special circumstance on its own to justify the release of Green Belt land in that location. The Secretary of State agreed with that conclusion in paragraph 8 of the decision letter.[12]Whilst, therefore, I accept that it would have been better if the inspector and the Secretary of State had expressly addressed the claimant's argument relating to the weight to be attached to policy H22, the matters relied upon in support of that argument were dealt with by the inspector in her report. The Secretary of State's conclusion that considerable weight should be afforded to policy H22 was, therefore, reached in the knowledge of those matters. It cannot, in my view, be said that the Secretary of State's conclusion was Wednesbury unreasonable. The question of how much weight should be attached to a policy is a matter of judgment for him.[13]Even if it can be said that there was a deficiency of reasoning by the Secretary of State, I do not consider that the result would have been any different. Mr Willers submitted that, if the Secretary of State had addressed the claimant's argument and had concluded that little, if any, weight could be attached to policy H22, it might have tipped the balance so that there was a real possibility that the Secretary of State might have come to a different conclusion. I do not accept that submission. The inspector had accepted that the proposed development complied with all of the criteria in policy H22 except for the fact that it was in the Green Belt. The Green Belt location was, therefore, the only matter in policy H22 which was adverse to the claimant. However, that is a matter which is also governed by national policy in paragraph 13 of Circular 1/94 which states that gypsy sites are not normally appropriate in Green Belts and that Green Belt land should therefore not be allocated for gypsy sites in development plans. It refers to the guidance given in PPG2 relating to Green Belt. That guidance requires that very special circumstances have to be shown to justify inappropriate development in the Green Belt.[14]The position, therefore, is that even if no weight was given to the Green Belt locational constraint in policy H22, that constraint would still have applied by virtue of national policy. The development complied with the other criteria in policy H22 so there was nothing else adverse to the claimant in the policy from which he could benefit in these proceedings if it were concluded that little or no weight could be attached to the policy.[15]In those circumstances, I do not consider that the Secretary of State's decision would have been any different if he had reached a different conclusion as to the weight to be afforded to policy H22. The Green Belt objection, which was fundamental to his decision, would have remained the same. Second ground of challenge - personal need I turn, then, to the second ground of challenge, namely that the Secretary of State, through his inspector, failed to distinguish between the need of the claimant and his family for a gypsy site, and the question of the personal circumstance and hardship that would be caused to the family if planning permission were refused. That submission was based on the case of Hedges v The Secretary of State for the Environment, 73 P&CR 534, where Mr Gerald Moriarty QC, sitting as a Deputy High Court Judge, held that the need for the provision of sites for gypsies generally, or their personal needs for accommodation, should be considered independently from the question of personal circumstances or hardship to the family.[16]I have already referred to the inspector's conclusion in paragraphs 67 and 68 of her report that there was an unmet need for additional gypsy sites in the Borough. In the first sentence of paragraph 70 of her report she stated:
"I acknowledge that the appellant needs a settled site from which he can continue to travel as appropriate."
She then continued in that paragraph to deal with the educational needs of the children and, in the last sentence, concluded by saying that the personal circumstances do not provide the very special circumstances necessary to overcome the harm from inappropriate development.[17]Mr Willers submitted that the first sentence of paragraph 70 of the inspector's report was the only sentence in the report that dealt with the claimant's need for a site, and that it was not possible to discern from the report what weight was given to that material consideration. He referred to two other appeal decisions where the appellant's personal needs for a site had been dealt with separately and fully, and he also referred to the proof of evidence of the claimant's planning witness in this case which dealt fully with the claimant's need for accommodation as a separate topic. Mr Willers submitted that the inspector and the Secretary of State had erred by failing to look at the claimant's need for a site independently of his personal circumstances.[18]This case is different from the Hedges case because in that case the inspector had not dealt with the issue of need adequately at all. In this case, the inspector certainly dealt with the need for additional gypsy sites in the Borough fully and clearly in her report. Furthermore, she did deal with the claimant's need for a site in the first sentence of paragraph 70. She said that she acknowledged it; in other words, she accepted that the claimant needed a settled site. Whilst I would accept that that is a short conclusion in relation to a matter dealt with fully on behalf of the claimant, the inspector was entitled to deal with it in that way.[19]Whilst it may be right to say that that conclusion tends, thereafter, to merge with other personal circumstances referred to in paragraph 70, the important thing is that there was a conclusion relating to the claimant's personal need for a site, unlike the case of Hedges where the whole issue of need had not been identified and dealt with adequately at all. In those circumstances, I am not persuaded that this ground of challenge affords a justifiable ground upon which to quash the planning permission. Third ground of challenge -- temporary planning permission I turn then, finally, to the third ground of challenge which relates to the issue of a temporary planning permission. Paragraph 42 of the inspector's report records, as part of the claimant's case, a request for temporary planning permission to allow time for an alternative site to be sought if permanent planning permission is refused. It is clear from the written final submissions made by Mr Willers at the inquiry that that request was made to the inspector.[20]Paragraph 55 records the parties' submissions on the subject of conditions if planning permission were granted. That paragraph records a request having been made by the claimant for temporary planning permission until the children finished their education if permanent planning permission were not granted, together with the Council's response that that would amount to a permanent consent due to the period of time. It therefore appears that there were alternative requests for temporary planning permission, either to allow time for an alternative site to be sought, or to allow the children's education to be finished.[21]Paragraphs 74 to 80 of the inspector's report contain her conclusions on the subject of conditions if planning permission is granted. Paragraph 80 on page 15 states:
"I have considered whether a temporary condition might be possible. Circular 11/95 advises that a temporary permission will normally only be appropriate either where the applicant proposes temporary development or when a trial run is needed in order to assess the effect of the development on the area. Temporary permission during the education of the children could last for many years, and the harmful effect of the development on the Green Belt has already been assessed. I do not find the very special circumstances to justify even a temporary consent for such an extended period of time [55]."
The number "55" at the end of that paragraph is a reference back to paragraph 55 of the report to which I have just referred. In other words, there is no reference back to paragraph 42 which recorded the claimant's request for temporary planning permission to allow time for an alternative site to be sought.[22]The Secretary of State's decision is silent on the question of conditions. In a way, that is not surprising because planning permission was being refused, so the question of the usual sort of conditions to be attached to a planning permission did not arise. However, the issue of a condition for a temporary planning permission had arisen.[23]Mr Willers submitted, firstly, that the Secretary of State had failed to deal with the question of a temporary planning permission to allow time for the claimant to find an alternative site. Secondly, he submitted that the Secretary of State had failed to consider whether the refusal of temporary planning permission would amount to a disproportionate interference with the claimant's rights under Article 8 of the European Convention on Human Rights. I was referred to the case of R (on the application of Samaroo) v The Secretary of State for the Home Department [2001] EWCA Civ 1139, where Dyson LJ referred to the two-stage test when dealing with the issue of proportionality; namely, can the objective of the measure be achieved by means which are less interfering of an individual's rights, and secondly, if not, does the measure have an excessive or disproportionate effect on the interests of affected persons?[24]Mr Mould relied four square on paragraph 11 of the Secretary of State's decision letter which is headed "Human Rights". It states: "The Secretary of State agrees with the inspector for the reasons given at paragraph 73 that although refusal of planning permission would be an interference with the appellant's home and family life, it would not be a disproportionate burden balanced against the harm to the Green Belt. Interference with home and private and family life must be balanced against the public interest in pursuing the legitimate aims of Article 8 of the European Convention on Human Rights, which include the protection of the environment. The fundamental aim of Green Belt policy of preventing urban sprawl by keeping land permanently open is a matter in the public interest. Given the extent of the harm to the Green Belt, the Secretary of State takes the view that the public interest can only be safeguarded by the refusal of planning permission. He does not consider, therefore, that dismissal of the appeal would result in a violation of the appellant's rights under Article 8 of the Convention." (My emphasis).[25]Mr Mould submitted that it was clear from the use of the word "only" in the sentence to which emphasis has been given, that the only acceptable result, in order to protect the public interest, was to refuse planning permission outright, even temporary planning permission. In other words, the Secretary of State was not persuaded that anything other than outright refusal would be appropriate. He also submitted that paragraph 11 of the decision letter addressed immaculately the two-stage test for proportionality.[26]I am afraid I am not persuaded by Mr Mould's argument. I find it difficult to accept that the issue of temporary planning permission has been dealt with by implication in one sentence in a paragraph dealing with human rights. I think it most likely that the Secretary of State had permanent planning permission in mind in that paragraph. If he had intended to include temporary planning permission, he could easily have made it clear in the sentence relied upon by Mr Mould. If I am wrong about that, he has certainly failed to make it sufficiently clear.[27]The Secretary of State was faced with a conclusion by the inspector that temporary planning permission should not be granted to allow the children to finish their education, and with a failure of the inspector to deal with the claimant's request for a temporary planning permission to allow time for the claimant to find another site. In my view, the question of temporary planning permission simply has not been addressed in the Secretary of State's decision letter. As I have said, I am not prepared to accept that it has been dealt with impliedly in paragraph 11. In those circumstances, I have decided that this application succeeds on the third ground of challenge. It follows that the Secretary of State's decision must be quashed in order for him to deal with the issue of temporary planning permission and the issue of proportionality relating to it.[28]MR WILLERS: I am grateful, my Lord, thank you. Can I ask for the claimant's costs, please, my Lord? We have a schedule which I would just like to hand to my learned friend. It has been amended slightly and there may be a query of it. I am afraid the original schedule prepared on behalf of the claimant did not include a figure of VAT for my fee, and my instructing solicitors' representative has calculated the VAT element of those fees.

MR JUSTICE HARRISON: I understand.

[30]MR WILLERS: My Lord, if I can just do the calculation?

MR JUSTICE HARRISON: Yes, take your time.

[32]MR WILLERS: My Lord, the figure is agreed. If I can hand it up, please. (Handed).[33]MR JUSTICE HARRISON: Thank you very much. The amount is £8,830.56, is that right?[34]MR WILLERS: My Lord, yes.[35]MR JUSTICE HARRISON: Thank you very much. Miss Ward, first of all, do you dispute, in principle, that the defendant should pay the claimant's costs?[36]MS WARD: No, my Lord, that is agreed and there is no challenge to the figure.[37]MR JUSTICE HARRISON: Thank you very much. I will now make an order that the defendant pays the claimant's costs in the sum of £8,830.56.[38]MS WARD: My Lord, I do have an application for permission to appeal. I appreciate that you went against us only on the third ground and it is, obviously, a very narrow ground relating to one issue and not a substantive decision about whether permission should be granted, and, in those circumstances, I would ask the matter might be put in for further consideration.

MR JUSTICE HARRISON: What would be the grounds for seeking permission to appeal?

[40]MS WARD: My Lord, obviously, I have not had a chance to consider this in detail. The ground would be that the issue is dealt with in paragraph 11 of the decision letter.[41]MR JUSTICE HARRISON: Yes, I see. Have you anything you want to say on that, Mr Willers?[42]MR WILLERS: My Lord, not as far as the application as made by the Secretary of State. I do not have Mr Lee here so I cannot take specific instructions. He was due to be here but his motorcar broke down. I would not wish your Lordship to think I am not grateful for your Lordship's judgment but there was one other issue which I would ask your Lordship considers and that is that, in the event that permission is granted to the First Secretary of State by the Court of Appeal, the issue of need and how the inspector dealt with that issue might be something that also ought to be given further consideration.[43]I say that purely because it is a different case from the Hedges case and no doubt the personal needs of gypsies and travellers will arise in each and every case where they will apply for planning permission. In those circumstances, it might be that your Lordship could say that it is a point which may be worth the Court of Appeal's further consideration if they were to grant permission to appeal to the First Secretary of State. Obviously, I am not applying for permission to appeal but --[44]MR JUSTICE HARRISON: But you are asking for permission to appeal if I were to grant permission to appeal to the Secretary of State?[45]MR WILLERS: My Lord, yes.[46]MR JUSTICE HARRISON: Thank you very much. Well, my decision is that I will not grant permission to appeal to the Secretary of State and therefore your request, I do not think, really arises to be dealt with.[47]MR WILLERS: My Lord, thank you very much.

Cited in 3 later judgments