South Cambridgeshire District Council v First Secretary of State & Ors [2004] EWHC 2933 (Admin)

Case Numbers: CO/1326/2004 and CO/1327/2004[2004] EWHC 2933 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 15 th December 2004
Before: The Honourable Mr Justice Forbes
Between
SOUTH CAMBRIDGESHIRE DISTRICT COUNCILClaimantTHE FIRST SECRETARY OF STATEDefendantsMR PATRICK McCARTHYDefendantMRS P McCARTHYDefendantMR DANIEL O’ROURKEDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Reporting Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss Morag Ellis (instructed by Sharpe Pritchard) for ClaimantMr Alan Masters (instructed by Bramwell Browne and Odedra) for Defendants
Judgment
[1]Introduction. The Claimant is the local planning authority (“the LPA”) for the area in Cambridgeshire that includes land to the rear of plot 3, Setchel Drove, Cottenham (“the site”). These proceedings are concerned with the following matters:(i) an application under section 288 of the Town and Country Planning Act 1990 as amended (“the 1990 Act”) to quash the decision of the First Defendant’s duly appointed Inspector, Mr Clive Woodhouse (“the Inspector”), given by letter dated 16th February 2004 (“the decision letter”), on an appeal under section 78 of the 1990 Act (“the section 78 appeal”) against the refusal of the LPA to grant planning permission for the stationing of two (residential) caravans and a shower block on the site (“the development”); and(ii) an appeal under section 289 of the 1990 Act against the decision of the Inspector in the same decision letter whereby he quashed the LPA’s enforcement notice dated 19th May 2003 in respect of the use of land (i.e. the site) without planning permission as a residential caravan site, ancillary provision of drains and construction of accesses and hard-standings (i.e. for carrying out the development without planning permission).[2]The second and third named Defendants (“Mr and Mrs McCarthy”) are husband and wife. The fourth named Defendant (“Mr O’Rourke”) is their grandson. It is common ground that all three occupy the site. However, in the preamble to the decision letter, the Inspector recorded that the enforcement notice appeal had been made by Mr McCarthy pursuant to section 174 of the 1990 Act and that the section 78 appeal had been made by both Mr and Mrs McCarthy. Nevertheless, in paragraph 5 of the decision letter, the Inspector summarised Mr and Mrs McCarthy’s appeals in terms that recognised that the site was also occupied by Mr O’Rourke and that both appeals were concerned with the same development of the land, as follows:
“5. These appeals relate to the residential occupation of the same site and I will deal with them jointly. The occupiers of the site at the time of the hearing were Mr and Mrs P McCarthy and their 18 year old grandson Daniel O’Rourke. On the site was a portacabin adapted for living purposes with a wooden extension, a lorry body, a portaloo and a touring caravan.”
[3]The Legislative Framework. Section 54A of the 1990 Act provides as follows:
“Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.”
[4]Section 172 of the 1990 Act provides for the issue of an enforcement notice in the event of a breach of planning control. An appeal against an enforcement notice lies to the appropriate Secretary of State under section 174 of the 1990 Act on grounds including:
“(a) that, in respect of any breach of planning control constituted by the matters stated in the notice, planning permission ought to be granted.”
[5]So far as material, section 177 of the 1990 Act provides as follows: “(1) On the determination of an appeal under section 174, the Secretary of State may – (a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control … (2) In considering whether to grant planning permission under subsection (1), the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject matter of the enforcement notice, and to any other material consideration. … (5) Where an appeal against an enforcement notice is brought under section 174, the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control.” (a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control …[6]By section 288 of the 1990 Act the local planning authority may appeal on the ground that the decision in question is not within the powers of the Act. By section 289 of the 1990 Act the local planning authority may appeal against the decision on a point of law.[7]The Factual Background and the Inspector’s reasoning. In paragraph 2 of the decision letter, the Inspector noted that “the appellants” (i.e. Mr and Mrs McCarthy: see paragraph 10 below) were part of a group of gypsies of the Irish traveller tradition that had been evicted from an unauthorised site in the Metropolitan Green Belt near Tring. In 2002 several of the families in the group, including three of Mr and Mrs McCarthy’s children, purchased pitches on Setchel Drove and, in April 2003, Mr and Mrs McCarthy took up occupation on the site, which is located on adjoining land. Although the site’s location is rural, it is not Green Belt land.[8]The site is situated to the rear of a long-established group of 18 gypsy sites with planning permission on the south side of Setchel Drove. Setchel Drove is a concrete fen road in a rural area about 1km to the northeast of the village of Cottenham. About 180m to the southeast is another authorised group of 15 gypsy pitches along Orchard Lane and Water Lane. During 2003, new roadways were constructed from Orchard Lane into the gap between the two authorised groups and the whole of the intervening land was sub-divided into pitches, including that occupied by the appellants. Following a public local inquiry, planning permission was granted on appeal in October 2003 for 4 of the newly formed pitches to southwest of the site to be used as residential caravan sites (referred to in the decision letter as the “Boswell” site and occupied by gypsies related to Mr and Mrs McCarthy): see paragraphs 3 and 4 of the decision letter.[9]In paragraph 6 of the decision letter, the Inspector identified the main issues in the appeals with which he was concerned as follows:(i) whether “the appellants” (i.e. Mr and Mrs McCarthy) were gypsies for planning purposes,(ii) the effect of the use of the site on the rural character and appearance of the area and(iii) the weight to be attached to the personal circumstances of “the appellants” and the need for gypsy sites.[10]As it seems to me, on those occasions when the Inspector used the expression “the appellants” in the course of the decision letter, he was clearly referring only to Mr and Mrs McCarthy. I am fortified in that view by (inter alia) the terms of paragraphs 2, 10, 14, 15, 17 and 23 of the decision letter. In particular, in paragraph 17 of the decision letter (as to which, see below) the Inspector drew a clear distinction between the position of “the appellants” (i.e. Mr and Mrs McCarthy) and their grandson, Mr O’Rourke, a distinction that is maintained consistently throughout the decision letter. I therefore reject Mr Masters’ submission on behalf of the Defendants that the expression “the appellants” in the decision letter should be read or understood as including Mr O’Rourke because he was at all material times an occupier of the site.[11]In paragraph 7 of the decision letter, the Inspector summarised the relevant planning policy in the following terms:
“The development plan for the area consists of the Cambridgeshire and Peterborough Structure Plan, adopted in October 2003 and the South Cambridgeshire Local Plan, adopted in 1993. The adopted policies impose strict restraints over development in the countryside. Structure plan policy P5/4 requires local plans to make provision for locally assessed housing needs, including those of travellers and gypsies. The adopted plan pre-dates Circular 1/94, which advised local planning authorities to include policies on gypsy site provision in their plans, and there are no such policies in the document. The replacement local plan is to be adopted in February 2004 and I accord its policies significant weight. Policy HG29 deals with gypsy sites, provided they are essential to enable applicants to continue to exercise a travelling lifestyle for the purposes of making or seeking their livelihood. Subject to this proviso, there are nine criteria concerning siting. The Council clarified at the hearing that criteria 2, 3 and 4 concerning the need to avoid significant adverse effects on rural character and appearance and the avoidance of a concentration of sites are most relevant.”
[12]Draft Policy HG29, to which the Inspector referred in paragraph 7 of the decision letter, is now Policy HG23 of the adopted replacement local plan (it was formally adopted in February 2004). Its terms are in all material respects the same as those of draft policy HG29, as follows:
“POLICY HG23: Outside the Green Belt, proposals for caravans for gypsies and travelling show people on a site consisting of a single or more pitches, will only be considered when the need for a site is shown to be essential to enable the applicants to continue to exercise a travelling lifestyle for the purpose of making and seeking their livelihood. Occupation would be restricted to gypsies or travelling show people (as the case may be) and may be limited to a temporary period and/or for the benefit of named occupier(s). Where the need is proven, to the Council’s satisfaction, the following criteria will have to be met: (1) The site is reasonably located for schools, shops and other local services. (2) The site would have minimal impact on the amenities of existing local residents and adjoining land uses; concentration of sites will be avoided. (3) The site would not, either on its own, or cumulatively, have a significant adverse effect on the rural character and appearance, or the amenities of the surrounding area. (4) The site can be satisfactorily assimilated into its surroundings by existing or proposed landscaping; an approved landscaping scheme will be required. (5) The use of the site would not give rise to unacceptable parking, highway access or service provision problems. (6) The site would not adversely affect any buildings or historic or archaeological importance, or sites of wildlife or nature conservation value. (7) Where planning permission is allowed, built forms of development will not be permitted except for utility outhouses. Small stables will be considered on their merits depending upon need and the nature of the site. (8) The site has adequate infrastructural connections to local services including water supply. (9) The use would not detract from convenient, safe and enjoyable use of a public right of way.”
[13]In paragraphs 8 to 11 of the decision letter, the Inspector dealt with the gypsy status of Mr and Mrs McCarthy and Mr O’Rourke, as follows. “Gypsy Status 8. Gypsies are defined in section 16 of the Caravan Sites Act 1968 as “persons of nomadic habit of life, whatever their race or origin”. Various judgements have qualified the way that definition is to be interpreted, including the case of R v South Hams DC and another, ex parte Gibb 1994, where it is stated that “gypsies” means persons who wandered or travelled for the purpose of making or seeking their livelihood. The Council considers that because of the age and ill health of Mr and Mrs McCarthy, they have permanently given up the nomadic habit of life and have therefore lost their gypsy status for planning purposes. The Council refers to the judgement of the Court of Appeal in the case of Wrexham CB v The National Assembly of Wales and Mr and Mrs Berry in support of the contention that gypsy status can be lost in such circumstances. It was held in that case that where people 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”. 9. Subject to siting considerations, development plan policies permit gypsy sites in rural areas near settlements where other types of residential caravan sites would not normally be allowed. 10. There is no dispute that the appellants are gypsies by birth and that they lived a nomadic life in caravans as part of a gypsy group for as long as they were able. For many years Mr McCarthy travelled widely with a group who made their livelihood by selling carpets from door to door. In 1984 he had a heart bypass operation and he still has heart and other health problems including an inoperable hernia. He is 68 and is unable to lift heavy objects or to manoeuvre his caravan without help. Mrs McCarthy also has heart problems. Before moving to the appeal site they had generally lived wherever the gypsy group had its base and had taken on the care and upbringing of their grandson. They rely to some extent on the care and support of their daughters and other family members on adjoining sites. The appellants consider that they have permanently retired from travelling and working. At the time of the hearing, Daniel O’Rourke was said to be travelling in the Sheffield area with a group selling carpets and that he returns periodically to the appeal site. 11. I conclude as a matter of fact and degree that Mr and Mrs McCarthy no longer have a nomadic way of life. Their occupation of the appeal site can not therefore be regarded as essential for them to continue to exercise a travelling lifestyle, as required by the local plan HG29. From the information given at the hearing, I consider that Daniel O’Rourke has gypsy status for planning purposes. My conclusion that two out of the three occupiers of the site have lost their gypsy status reduces the weight I can attach to local and national gypsy site policies in this case.”[14]In paragraphs 12 and 13 of the decision letter, the Inspector explained his conclusions with regard to the effect of the development on the rural character and appearance of the area, as follows. “12. In assessing the effect of the appeal site under this issue, I have disregarded the large number of unauthorised pitches in the gap between Setchel Drove and Orchard Lane. 13. The appeal site is situated in the corner of an L-shaped area of authorised sites formed by those on Setchel Drove and the recently permitted Boswell site. It is screened in views from the south by the authorised sites on Orchard Lane and a small industrial area. From my inspection of the whole area I am satisfied that the caravan and related structures on the appeal site can not be seen from any publicly accessible point outside the gypsy encampment. It represents a relatively small expansion of the authorised area and in my view does not lead to an unacceptable concentration of gypsy sites in visual terms. Because of its small size and well-screened position I consider that landscaping is neither necessary nor practical. I consider that this particular site satisfies the tests in parts 2, 3 and 4 of policy HG29. I conclude on the second main issue that the occupation of the site has no unacceptable effects on the rural character and appearance of the area.”[15]It is to be noted that, in his assessment of the effect of the development on the rural character and appearance of the area, the Inspector made no reference to the current development plan policies that imposed strict restraints over development in the countryside (see paragraph 7 of the decision letter, quoted in paragraph 7 above). Instead, the only policy to which the Inspector referred in this part of the decision letter was policy HG29 of the draft replacement local plan (now policy HG23 of the adopted local plan). Furthermore, the Inspector appears to have applied draft policy HG29 as if it were an existing development plan policy (which, at that stage, it was not), as seems also to have been his approach in paragraph 9 of the decision letter (see paragraph 9 above). On behalf of the Claimant, Miss Ellis made it clear that she did not stress the Inspector’s misdirection in paragraph 9 of the decision letter because, as indicated above, very shortly afterwards draft policy HG29 did become incorporated into the replacement local plan as policy HG23. However, she suggested that the misdirection was indicative of the Inspector’s confused approach to his consideration of the relevant planning policies.[16]Having dealt with the effect of the development on the rural character and appearance of the area in paragraphs 12 and 13 of the decision letter, the Inspector then turned to consider Mr and Mrs McCarthy’s personal circumstances and the need for gypsy sites, as follows. “Personal Circumstances 14. Many of the appellants’ immediate and extended family live on adjoining authorised sites. They are part of a close-knit community of inter-related families with whom they have lived, worked and travelled, until age and infirmity dictated retirement. There is a degree of dependence on the care of daughters and other family members. That dependence may well increase over the years. 15. The Council queried at the hearing why the appellants could not live and be cared for on one of the adjoining family pitches. Apart from the appellants’ wish to have a place of their own, it appeared to me that their needs could not easily be accommodated on those sites. I consider that the consequence of upholding the enforcement notice would be severe hardship for the appellants, since it would be very unlikely that they would be able to find an authorised site where they could benefit from the care and support of their own family. Given the appellants’ strong family ties and health problems, I consider that significant weight can be accorded to their personal circumstances as material considerations in this case. Need for Gypsy Sites16. South Cambridgeshire has a relatively large gypsy population. In 2002, 92% of gypsies in the district were accommodated on authorised sites, compared to a national percentage of 80%. As a result, unauthorised roadside gypsy camps have been rare occurrences in the area. As part of the local plan review process and in consultation with gypsy organisations, the Council has allocated a site at Chesterton Fen Road near Cambridge to meet the small degree of unmet local need. The Council has commenced a quantitative assessment of the needs of the resident gypsy population to supplement the information gained from the biannual counts. I accept the Council’s contention that no such assessment could have predicted the large influx of Irish travellers at Cottenham. It would appear from the information given at the hearing that most of the newcomers had no previous connections with the district. Their needs can in my view be seen as part of the acknowledged national shortfall in authorised gypsy sites.17. Since I have concluded that the appellants have lost their gypsy status for planning purposes, I consider that this aspect of the case is only relevant to the circumstances of their grandson who shares the use of the site. He is now leading an independent life as a long-distance traveller and it appears to me that he must have a wide range of stopping places open to him across the country. I do not regard his need for the appeal site to be of overriding importance.18. Whilst the need for gypsy sites nationally and locally is a factor weighing in favour of the proposal, it is not a consideration to which I attach great weight in this case.”

Need for Gypsy Sites

[17]In paragraphs 23 and 24 of the decision letter, the Inspector expressed his conclusions in the following terms. “Conclusions23. Although I have concluded that the appellants have ceased to be nomadic and no longer fall within the statutory definition of gypsies, their former way of life as gypsies, their strong family ties with others on the site and their need for health care and support in my opinion are material considerations that outweigh their loss of gypsy status. Because of its small size and position in relation to authorised sites, I conclude that the appeal site has no significant landscape impact and that it would not lead to an unacceptable concentration of sites. I consider that my decisions do not have any human rights implications for the appellants.24. For the reasons given above and having regard to all other matters raised, I consider that the appeals should succeed and planning permission will be granted subject to conditions. The appeal on ground (g) does not therefore need to be considered.”[18]The Inspector therefore allowed both appeals, quashed the enforcement notice and, subject to conditions, granted planning permission for the development already carried out namely “the use of land as a residential caravan site, ancillary provision of drains and construction of accesses and hardstandings on land at plot 2 and to the rear of plot 3 Setchel Drove, Cottenham”: see paragraphs 25 and 26 of the decision letter. So far as concerns the enforcement notice appeal, the Inspector granted planning permission on the application deemed to have been made under section 177(5) of the 1990 Act, as amended. The conditions imposed on the planning permission were in the following terms:
“1. The site shall not be used other than for residential occupation by Mr and Mrs McCarthy and, for as long as the site is occupied by Mr and/or Mrs McCarthy, by their grandson Daniel O’Rourke. 2. The site shall not be used for any trade or business and no materials shall be deposited in the open on any part of the site. 3. When the site ceases to be occupied by Mr and/or Mrs McCarthy, the residential use shall cease and the land shall be restored to its former condition.”
[19]Having considered the Claimant’s grounds, the First Defendant indicated that he was willing to submit to judgment on both the section 288 application and the section 289. On 7th June 2004, the Treasury Solicitor signed a draft Consent Order on behalf of the First Defendant to the effect that (inter alia) his decision (given by his Inspector’s letter dated 16th February 2004) be quashed on the grounds that the Inspector had taken into account immaterial considerations and or alternatively had reached a decision that was perverse. However, notwithstanding the First Defendant’s concession, Mr and Mrs McCarthy and Mr O’Rourke continued (as they were entitled) to resist both the section 288 application and the section 289 appeal.[20]The Grounds of Challenge. Miss Ellis identified three main grounds of challenge to the decision in question, as follows:(1) the Inspector misdirected himself and/or erred in law in his approach to or his treatment of the applicable development plan policies;(2) the Inspector took into account immaterial considerations and/or reached a decision that was perverse, in the light of his findings of fact with regard to Mr and Mrs McCarthy and Mr O’Rourke; and(3) the Inspector failed to give any or adequate reasons for his finding at paragraph 15 of the decision letter, that Mr and Mrs McCarthy’s needs could not easily be accommodated on adjoining authorised sites, to the prejudice of the LPA.[21]The Parties’ Submissions. To some extent the first two grounds of challenge overlap and it is convenient to deal with them together.[22]By way of an opening criticism, it was Miss Ellis’ submission that the Inspector had misdirected himself in paragraph 9 of the decision letter, by referring to the terms of draft policy HG29 as if that draft policy formed part of the then current development plan, which it plainly did not. As she pointed out, the Inspector had accurately summarised the relevant policies in the adopted development plan at an earlier stage of the decision letter (i.e. in paragraph 7, see above), as follows: “The adopted policies impose strict restraints over development in the countryside. Structure Plan policy P5/4 requires local plans to make provision for locally assessed housing needs, including those of travellers and gypsies”.[23]However, as I have already explained (see paragraph 15 above), although she was clearly correct in her criticism of paragraph 9 of the decision letter, Miss Ellis’ main reason for referring to this particular misdirection was that it lent support to her submission that the Inspector’s approach to and consideration of the relevant development plan policies was both confused and flawed.[24]Miss Ellis stressed the importance of the Inspector’s following findings of fact:(i) that Mr and Mrs McCarthy had lost their gypsy status, because they no longer have a nomadic way of life (see paragraph 11 of the decision letter) and(ii) that Mr O’Rourke does have gypsy status, that he has a wide range of stopping places open to him across the country and that his need for the appeal site is not of overriding importance to him (paragraphs 11 and 17 of the decision letter). She submitted that, in the light of those findings, Mr and Mrs McCarthy could no longer be considered to be travellers/gypsies for planning policy purposes and that, despite his established gypsy status, Mr O’Rourke did not come within the terms of draft policy HG29, because the site was not essential to him to continue to exercise a travelling lifestyle for the purposes of making and seeking his livelihood.[25]Miss Ellis accepted that, having regard to the issues identified in paragraph 6 of the decision letter (see paragraph 9 above), the Inspector had been correct to include draft policy HG29 as a relevant and potentially applicable policy consideration and, in view of the advanced stage of the replacement plan process, to attach significant weight to it, if applicable. However, she went on to submit (correctly, in my view) that, in the light of the Inspector’s clear findings of fact (see above), the terms of that draft policy had no application to either Mr and Mrs McCarthy or to Mr O’Rourke or the circumstances of this case.[26]It was therefore Miss Ellis’ submission that the Inspector had fallen into error by continuing to have regard to the terms of draft policy HG29, as if it were still applicable to the circumstances of the case, when he assessed the effect on the rural character and appearance of the area by reference to the HG29 criteria, instead of assessing that effect by reference to the restrictive development policies of the current development plan: see paragraph 13 of the decision letter. She also submitted, by a parity of reasoning, that the Inspector’s decision making on an important aspect of the case was seriously flawed, because he had failed to take into account the restrictive policies of the development plan and had taken into account an immaterial consideration, namely draft policy HG29 which, on the facts as found, was inapplicable.[27]Miss Ellis stressed the significance of this aspect of her submissions. It was her submission that paragraph 13 of the decision letter was the only paragraph in which the Inspector considered the effect of the development on the rural character of the area and that it was clear from the terms of that paragraph that he had done so by reference to an inapplicable (and, thus, immaterial) draft policy instead of the appropriate development plan policies, contrary to section 54A and section 177(2) of the 1990 Act.[28]Miss Ellis accepted that it was proper for the Inspector to put the personal circumstances of Mr and Mrs McCarthy and Mr O’Rourke into the planning balance that his decision-making entailed, but submitted that it was important to analyse how the Inspector reached the conclusions that he did. It was Miss Ellis’ submission that the conclusions expressed in paragraph 23 of the decision letter also demonstrate that the Inspector had clearly fallen into error. She submitted that, instead of weighing Mr and Mrs McCarthy’s personal circumstances against their loss of gypsy status (which is what the Inspector purported to have done), he should have weighed them against the relevant development plan policies. Miss Ellis contended that this error in approach was all of a piece with the manifest error made by the Inspector in paragraph 13 of the decision letter.[29]For his part, Mr Masters submitted, in effect, that it was wrong to analyse the Inspector’s decision-making by reference only to Mr and Mrs McCarthy and he emphasised the importance of Mr O’Rourke as an occupant of the site. He suggested that the Inspector had treated or regarded Mr O’Rourke as an appellant or, at the very least, as one of the applicants for planning permission in the deemed application and that he had therefore been correct to consider Mr O’Rourke’s personal circumstances as a gypsy as a highly material consideration. This, he submitted, brought into play all policy considerations relevant to gypsies and the need for gypsy sites. For the reasons already given (see paragraph 10 above), I am satisfied that the Inspector did not regard Mr O’Rourke as an appellant. Furthermore, having regard to the terms of section 177(5) of the 1990 Act (see above), Mr O’Rourke was not an applicant for planning permission in the deemed application. As section 177(5) makes clear, the applicant in the deemed application is the appellant in the enforcement notice appeal (i.e. Mr McCarthy, see paragraph 2 above).[30]However, it was Mr Masters’ further submission that, since Mr O’Rourke was an occupant of the site, Mr O’Rourke’s gypsy status was a material consideration that had to be taken into account by the Inspector in any event, as well as the personal circumstances relating to Mr and Mrs McCarthy, whether or not it was right to regard Mr O’Rourke as an appellant or applicant. Mr Masters therefore submitted that the Inspector had been bound to consider planning policies relevant to gypsies and the need for gypsy sites, because he had to take account of the needs and personal circumstances of all the occupants of the site and that this meant that he had to deal with Mr O’Rourke’s position as a gypsy occupant.[31]Mr Masters submitted that when the decision letter is read fairly in its entirety it can be seen that the Inspector has identified all the relevant policy considerations, has made appropriate findings of fact, has identified all the relevant personal needs and circumstances of all the occupants and has reached (as he was entitled to) a planning judgment in which the gypsy status of Mr O’Rourke has plainly and properly played an important part. In short, it was Mr Masters’ submission that, having rejected the gypsy status of two out of the three occupants of the site, the Inspector had gone on to consider the personal circumstances of all three as highly material considerations and had weighed those circumstances against the development plan and relevant policies. Mr Masters submitted that the Inspector had then come to a bona fide view, as he was entitled to, that those material considerations outweighed the plan considerations (see paragraph 16 of Mr Masters’ original skeleton argument).[32]In my view, Mr Masters submissions did not really come to grips with the central question raised by the first two grounds of challenge, which is whether the Inspector reached his decision as the result of a proper exercise of the planning judgment he was required to make in the light of the facts as found.[33]Miss Ellis entirely accepted that the Inspector had reached his decision as the result of his evaluation of the personal circumstances of all three occupants of the site. As I have already indicated (see paragraph 28 above), Miss Ellis also readily and rightly accepted that it was perfectly proper for the Inspector to put the personal circumstances of all three occupants into the planning balance for the purposes of the judgment that he had to make. It follows that Mr O’Rourke’s gypsy status was a material consideration that the Inspector was entitled to take into account and Miss Ellis did not suggest otherwise.[34]The gravamen of Miss Ellis’ submissions was that the Inspector’s own reasoning, as revealed by the decision letter, demonstrates clearly that he did not weigh the relevant material considerations (including Mr O’Rourke’s gypsy status) against the relevant development plan and policies as required by section 54A of the 1990 Act and that he thereby fell into error. In my view, Miss Ellis’ submissions are correct. On the Inspector’s findings of fact, draft policy HG29 was not applicable to the circumstances of the case that he had to consider. However, it is clear that the Inspector’s only assessment of the effect of the development on the rural character and appearance of the area was in the light of draft policy HG29, instead of by reference to the strict restraints over development in the countryside imposed by the adopted development plan (see paragraph 13 of the decision letter).[35]Furthermore, instead of weighing Mr and Mrs McCarthy’s personal circumstances, together with all other material considerations, against the relevant development plan and policies in order to arrive at an appropriate planning judgment, the Inspector concluded that their personal circumstances “outweigh(ed) their loss of gypsy status” (see paragraph 23 of the decision letter). In my view, it is far from clear how that particular conclusion bore upon or how the Inspector applied it to the decision that he then made with regard to the two appeals. However, what is apparent is that nowhere in the decision letter did the Inspector state that he had weighed those material considerations against the relevant development plan and policies. Given the clearly erroneous way in which the Inspector approached the status and applicability of draft policy HG29 (see, in particular, paragraphs 9 and 13 of the decision letter and paragraphs 22 to 25 above), I am driven to the conclusion that the Inspector’s planning judgment was flawed by an incorrect approach to the relevant development plan and policies and that, in the light of his findings of fact, he took into account immaterial considerations and reached a decision that was, accordingly, perverse/irrational. I reject Mr Masters’ submissions to the contrary effect. I am therefore satisfied that, for those reasons, the first two grounds of challenge succeed.[36]In view of my decision with regard to the first two grounds of challenge, the third ground (the “reasons” challenge) can be taken very briefly. Miss Ellis referred to paragraph 15 of the decision letter, in which the Inspector rejected the suggestion that Mr and Mrs McCarthy could live on one of the nearby authorised pitches in the following terms:
“Apart from the appellants’ wish to have a place of their own, it appeared to me that their needs could not easily be accommodated on those sites.”
Miss Ellis submitted (correctly, in my view) that this was an important issue in the case and that the Inspector had failed to give any or any adequate reasons for rejecting the LPA’s case on this aspect of the matter that would enable it to understand how it should approach similar issues in the future: see the speech of Lord Brown in South Bucks v Porter (2004) UKHL 33 at paragraph 36. For the reasons given in paragraph 4 of Mr Koch’s witness statement dated 19th March 2004, I am satisfied that the LPA is prejudiced by this manifest inadequacy in the Inspector’s reasons for his decision. Accordingly, on that briefly stated basis, the third ground of challenge also succeeds.[37]Conclusion. For the foregoing reasons, I have come to the firm conclusion that both the section 288 application and the section 289 appeal succeed and that the Inspector’s decision, given by letter dated 16th February 2004, must be and is hereby quashed.38. MR JUSTICE FORBES: Have you both received copies of the judgment in its approved form? It does not contain any further adjustments made to the original draft. I do not know if either of you have any corrections?39. MISS ELLIS: My Lord, there was one tiny typo that I spotted in paragraph 16.40. MR JUSTICE FORBES: I am just trying to find my copy. Paragraph which?41. MISS ELLIS: Paragraph 16, my Lord. It is so tiny I apologise for mentioning it, but as we are on the subject. It is on page 10 of my copy.42. MR MURPHY: Can I say, my Lord, I actually have the draft judgment.43. MR JUSTICE FORBES: There are copies of the approved judgment. Could you just tell me what the correction is?44. MISS ELLIS: It is in paragraph 16, my Lord, of the draft, but your Lordship indicated that there was a finalised copy. It is in the third line and I assume it ought to be Mr and Mrs McCarthy.45. MR JUSTICE FORBES: You are quite right. Thank you very much. I omitted the "Mrs". So insert the word "Mrs" in front of the word "McCarthy". Thank you very much.46. With that correction, then, I direct that the written judgment in approved form which I hand down this morning is to stand as my judgment in this matter. Accordingly, for the reasons contained in that judgment, both the section 288 application and the section 289 appeal succeed and the inspector's decision, given by a letter dated 16th February 2004, is hereby quashed.47. MR MURPHY: My Lord, I will go first. My Lord, two things. I would ask for a legal aid assessment of costs.48. MR JUSTICE FORBES: Yes. I order that the second, third and fourth defendants' costs are to be subject to legal aid assessment. Is there anything else?49. MR MURPHY: My Lord, yes. As you know, I did not appear before you in this matter, but I spoke to Mr Masters last night and he has asked me to ask you that we be given an extension of time to apply to the Court of Appeal for leave to appeal. My Lord, as I understand it, we have two weeks and Mr Masters obviously will have to consider the judgment. He is actually in Cambridge, ironically, at the moment conducting another inquiry. My Lord, of course he will have to advise legal aid and, of course, obtain legal aid and then draft the relevant papers. My Lord, no doubt it will not have escaped your notice that we are coming very much now up to Christmas, when this country tends to shut down. My Lord, you might think that, in those circumstances -- he is actually going away for a week with the family as well, so we do ask that we be allowed four weeks for leave to appeal.50. I have canvassed this with my learned friend and she said she would take instructions, so I do not know if she will object at this stage.51. MR JUSTICE FORBES: What are you asking for? An extension of the time in which to apply for leave to appeal to me?52. MR MURPHY: As I understand it -- my Lord, can you give leave to appeal?53. MR JUSTICE FORBES: Of course I can. As to whether I will or not is another matter.54. MR MURPHY: I am sorry, my Lord.55. MR JUSTICE FORBES: What you may need is, if --56. MR MURPHY: My Lord, can I just say, I spoke to my learned friend about this before coming in and, my Lord, I was informed -- I am just looking at the White Book now, it is section 52.13.57. MR JUSTICE FORBES: Where are you looking?58. MR MURPHY: Part 52, paragraph 13, my Lord. It is page 1453.59. MR JUSTICE FORBES: Yes.60. MR MURPHY: It is also flagged at page 1430.61. MR JUSTICE FORBES: Where are you looking at the moment?62. MR MURPHY: The first point is 52.13:
"(1) Permission is required from the Court of Appeal for any appeal to that court ..." 63. MR JUSTICE FORBES: Yes, this is an appeal on an appeal. That may be so with regard to the section 289, I am not sure, but as to the section 288 application, that would be something I can deal with. 64. MR MURPHY: My Lord, in those circumstances, my first port of call would be to ask you for leave to appeal on the section 288. 65. MR JUSTICE FORBES: Just a moment. Yes, I think part 52.13 means that in the case of a section 289 appeal -- I am not -- 66. MISS ELLIS: My Lord, it is certainly my understanding of the position that paragraph 52.13 applies to the 289, but not to the 288, because the 288 is an application. My Lord, my submission would be that, because my learned friend has to go to the Court of Appeal in relation to the section 289 anyway, that it would be sensible to leave the whole issue to the Court of Appeal. 67. MR JUSTICE FORBES: But even the 289 is not an appeal on an appeal in a conventional sense, because that is normally directed at an appeal from inside the judicial system. So an appeal from a district judge to the judge can be an appeal on an appeal, whereas, of course, section 289 is an appeal from the decision of the Secretary of State. But whether that is appeal on an appeal -- the Secretary of State's decision of course was -- I am not sure -- 68. MISS ELLIS: Certainly the phrase used in section 289 to describe the proceeding is "an appeal" and, my Lord, one can see that -- I do not think the whole section is set out in the White Book, but -- my Lord, can we turn to page 1895 within the RSC Order 94 section of the practice. My Lord, it is throughout that paragraph 13 that proceedings under inter alia section 289 are referred to as "an appeal"
. It is a statutory appeal. 69. MR JUSTICE FORBES: Yes, I suppose it does come under 52.13 then. I have to say quite often it is dealt with as if it is not an appeal. 70. MISS ELLIS: My Lord, my instructing solicitor told me yesterday that he had had recent experience of this point under Sullivan J, who took the line which I am respectfully asking your Lordship to take about it. But obviously that is no way of binding your Lordship. 71. MR JUSTICE FORBES: Well, I think certainly the section 288 application is not caught by 52.13, and I would not want there to be any technical problems arising by reason of any failure to apply for leave to me in respect of that matter. 72. MR MURPHY: My Lord, yes. My Lord, can I then ask for leave to appeal on the section 288? 73. MR JUSTICE FORBES: Right. Well, the answer to that is no. In my judgment, there are no reasonable prospects of success, nor are there any other special circumstances. 74. MR MURPHY: My Lord, the only other point I would seek to ask is that, given the timeframe, can we have an extension of time from two weeks to four weeks? 75. MR JUSTICE FORBES: Just a moment. What I have done on the section 288 form is simply to say the reasons for my decision to refuse permission to appeal are that there is no reasonable prospect of success and no other special circumstances. I have not, I think, recorded anything in respect of the section 289. If the question is raised, then I would have dealt with that in the same way. 76. MR MURPHY: My Lord, you have my application. 77. MR JUSTICE FORBES: Yes. Now, as far as time for the notice of appeal is concerned, in the ordinary way, that time will run from the date I make the order, unless time is extended. In short, if I do not deal with that aspect of the matter today, the only Tribunal that can vary what would otherwise be the automatic time limit running for the notice of appeal is the Court of Appeal itself. 78. MR MURPHY: My Lord, yes. 79. MR JUSTICE FORBES: So are you applying to me to extend time for the notice of appeal? 80. MR MURPHY: My Lord, yes. That is what Mr Masters has asked me to ask you, given the reasons I have outlined, my Lord. As you know, when one applies for legal aid it does not always come straight away and Mr Masters would have to consider his position in the first place to see whether in fact he should go to the Court of Appeal, because he is legally aided. So he would be reluctant to waste costs and would advise only if he thought there were merits. 81. MR JUSTICE FORBES: The short answer is, Mr Murphy, that the whole matter really now needs to go to the Court of Appeal. I am not prepared to extend time for the notice, given that you have to go to the Court of Appeal in respect of section 289. I think you will have to deal with everything together and, insofar as I deal with the matter at all, I am not prepared to extend the time for a final notice of appeal. That deals with that aspect of the matter. 82. MR MURPHY: My Lord, those are my only applications before you this morning. 83. MR JUSTICE FORBES: Have you any other applications, Ms Ellis? 84. MISS ELLIS: My Lord, yes. I apologise, as it were, for going backwards. Perhaps I should have raised this earlier, but if your Lordship still has the practice open at page 1895 under RSC Order 94. My Lord, it concerns a technical point again with regard to the section 289 appeal. 85. MR JUSTICE FORBES: Yes. 86. MISS ELLIS: My Lord, it is subparagraph 7 of paragraph 13, which provides, as far as the 289 appeal is concerned, that the correct thing to do is to remit the matter to the Secretary of State. It is rather odd because of the concurrent 288 application. 87. MR JUSTICE FORBES: The consent order was simply one in which the Secretary of State agreed to quash the decision. 88. MISS ELLIS: Yes. 89. MR JUSTICE FORBES: I set that out in the judgment. Well -- 90. MISS ELLIS: That certainly is the right order with respect to the 288 application. 91. MR JUSTICE FORBES: Yes. Well, how do you want me to deal with the matter then? 92. MISS ELLIS: Might I suggest that the 288 application be expressed as a quashing, and that the 289 be expressed as a remission to the Secretary of State. My Lord, it comes to exactly the same thing in practice, because, of course, the effect of the quash is just to -- 93. MR JUSTICE FORBES: Thank you for drawing that to my attention. Is there anything you want to say about that, Mr Murphy? 94. MR MURPHY: Not really, my Lord. As my learned friend outlined, it pretty much amounts to the same thing in any event. 95. MR JUSTICE FORBES: In that case, the order that I make, therefore -- as far as the substantive application is concerned and the appeal under section 289 -- the order under section 288 of the 1990 Act is that the inspector's decision be quashed and the order under section 289 is that the matter is remitted to the Secretary of State, together with my opinion as expressed in my judgment, for rehearing and redetermination by the Secretary of State. 96. MISS ELLIS: Thank you, my Lord. That then simply leaves the question of costs. My Lord, there is agreement with the first defendant. (Handed). 97. MR JUSTICE FORBES: Thank you. 98. MISS ELLIS: My Lord, as to the period from 8th June onwards I ask for an order against the second and third defendants, not to be enforced without the permission of the court. 99. MR JUSTICE FORBES: Mr Murphy? 100. MR MURPHY: My Lord, can I say that I have just seen this now. My Lord, I suspect that I am in a difficult position to resist because, of course, costs would normally go with the event. My Lord, I do not know why the first defendant was not legally aided. 101. MR JUSTICE FORBES: The Secretary of State is not normally legally aided. 102. MR MURPHY: I am sorry. 103. MR JUSTICE FORBES: The first defendant was the Secretary of State. He played no part in the matter because, in fact, he consented to the order, but the second, third and fourth defendants, as they were fully entitled to, resisted the application and appeal and in the event were unsuccessful. That is why there is the watershed of 8th June, because the costs up to and including 8th June are to be paid by the Secretary of State. It is the period subsequent to that in respect of which Ms Ellis seeks the legal aid order. 104. MISS ELLIS: It should be against defendants two, three and four, my Lord. All of them. 105. MR JUSTICE FORBES: Two, three and four. Yes. 106. MR MURPHY: My Lord, I do not resist that. 107. MR JUSTICE FORBES: Very well. In that case, I order that the second, third and fourth defendants are to pay the claimant's costs after the 8th June 2004, such costs to be subject to a detailed assessment if not agreed and in any event not to be enforced without the leave of the court. Is that satisfactory, Ms Ellis? 108. MISS ELLIS: My Lord, I would ask that your Lordship formally orders costs against the First Secretary of State. 109. MR JUSTICE FORBES: You are quite right. As far as the costs of this matter are concerned up to and including 8th June 2004, the First Secretary of State is to pay the claimant's costs, assessed in the agreed sum of £4,545. It is a good job I have you here, Ms Ellis, to keep an eye on me. Thank you very much. 110. MISS ELLIS: Thank you. 111. MR JUSTICE FORBES: Is there anything else? 112. MISS ELLIS: No thank you, my Lord. 113. MR JUSTICE FORBES: Thank you both.

Cited in 1 later judgment