Basildon District Council, R (on the application of) v First Secretary of State & Anor [2004] EWHC 951 (Admin)

Case No CO/5829/2002[2004] EWHC 951 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 20th April 2004
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE RICH QC
(Sitting as a Deputy Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF BASILDON DISTRICT COUNCILClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendantMRS GAIL DORANDefendant
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 BEDFORD (instructed by BASILDON DISTRICT COUNCIL SOLICITORS) appeared for CLAIMANT for THE FIRST RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTEDMR D WATKINSON (instructed by COMMUNITY LAW PARTNERSHIP) appeared for 2nd DEFENDANT
J U D G M E N TTuesday, 20th April 2004
[1]THE DEPUTY JUDGE: This is an appeal by the local planning authority against the decision of the first respondent's inspector upon an appeal against an enforcement notice requiring the discontinuance of the appeal site for use for caravans.[2]By that decision, dated 25th November 2002, the Inspector granted planning permission on the deemed application for up to four mobile homes and four touring caravans, conditional upon Mr and Mrs Doran and/or their son Patrick continuing to occupy the site. Such personal permission was justified by the Inspector's consideration of the personal circumstances of the appellant, Mrs Doran, and those other members of her family.[3]If, as is submitted, the Inspector's consideration of such circumstances involved an error of law, then there is no issue that the procedural requirement of permission to appeal under section 289 of the Act against the enforcement notice decision should be overcome, and that at the same time as I allow the appeals under section 288 and 289 against the grant of planning permission, I should give permission also to bring the necessary appeal under section 289.[4]The decision letter noted at paragraph 4 that the appellant claimed gypsy status and referred to the advice in Circular 1/94, which, as it says, provides that the planning system should recognise the need for accommodation consistent with gypsies' nomadic lifestyle. Although in paragraphs 13 to 16 of the decision letter the Inspector set out a number of considerations as to the needs of Mrs Doran's family, and particularly their medical needs, Mr Watkinson, for Mrs Doran, does not dispute that the Inspector's decision depended heavily upon his conclusion that they enjoyed gypsy status. He accepts that if the Inspector fell into error in his determination of that matter, the decisions must be remitted for further hearing.[5]The Secretary of State has accepted, in the light of decisions of the Court of Appeal, that the Inspector's decision cannot be supported and does not appear before this court. Nonetheless this court will only intervene if satisfied that there was indeed an error of law.[6]The Inspector set out his findings as to the appellant's gypsy status in paragraphs 5 to 8 of his decision letter which I will now read:
"5. At the inquiry the appellant stated that she was a Romany Gypsy who had travelled all her life. More recently (over the last 8 years) she had travelled with her husband and family in the Essex area but had now decided to settle down at the appeal site. She and her husband lived here with her daughter Margaret who has 4 children, her son Patrick, another son James, along with his wife and their small baby. 6. I note that the Council did not challenge any of the appellant's evidence in respect of her previous lifestyle. Nevertheless they pointed out that the appellant had indicated that they no longer intended to travel. In this respect they drew my attention to the Court of Appeal judgment of Hearne v National Assembly for Wales [2000] JPL 161 where it was held that the appropriate time to assess gypsy status was at the time the appeal was being considered and that a stated intention to settle permanently and abandon a nomadic lifestyle can mean that gypsy status is lost. 7. I have of course carefully studied the Council's arguments. Nevertheless, it seems to me that this case can be distinguished from the Hearne judgment in that the decision made by Mrs Doran and her family to give up travelling and cease their nomadic lifestyle has not been made on a voluntary basis, rather it has been forced upon them by ill health. Government advice in the form of Circular 1/94 generally encourages gypsies to provide their own private sites where they can permanently settle and in my opinion it would be unreasonable and unjust to conclude that a person born a gypsy should cease to retain their gypsy status simply because ill health or infirmity restricted their ability to travel. 8. I therefore conclude that the appellant and her extended family fall within the definition of a gypsy as set out in section 24 of the Caravan Sites and Control of Development Act 1960 and I shall take this factor into account in reaching my conclusions about this appeal."
[7]The Council's case has been elaborated into five separate grounds, but in essence it is very simple and simply stated. The Inspector was wrong to hold that the decision made by Mrs Doran and her family to give up travelling and cease their nomadic lifestyle did not affect their acknowledged previous status as gypsies because it was not made on a voluntary basis but had been forced upon them by ill health.[8]The Inspector's contrary reasoning is, in my judgment, directly contrary to the decision of the Court of Appeal in the case of Wrexham County Borough Council v The NationalAssembly of Wales and Others [2004] JPL 65 which has, of course, been reported only subsequent to the Inspector's decision. I read paragraph 3 from the headnote which, in my judgment, makes this sufficiently clear:
"Whether applicants for planning permission are of a 'nomadic way of life' [which is, of course, the definition contained in the Act] as a matter of planning law and policy is a functional test to be applied to their way of life at the time of the determination. The fact that they may have a permanent base from which they set out on, and to which they return from, their periodic travelling may not deprive them of nomadic status. The fact that they are temporarily confined to their permanent base for personal reasons such as sickness and/or, possibly, in the interests of their children, may not do so either, depending on the reasons and the length of time, part and projected, of the abeyance of their travelling life. However, if they have retired permanently from travelling for whatever reason, ill health, age or simply because they no longer wish to follow that way of life, they no longer have 'nomadic habit of life'. That is not to say they cannot recover it later, if their circumstances and intention change, gypsy status in this sense is an alterable status, but that would arise if and when they made some future application for permission on the strength of that resumption of the status."
[9]Thus, in my judgment, the distinction which the Inspector made from the decision in the Hearne case was wrong. Status may continue if not intended to be permanent, but does not depend upon whether or not it is voluntary.[10]I should, out of respect to Mr Bedford's argument, refer briefly to another error upon which he relies, which is the summary of the government advice given in Circular 1/94, which the Inspector gave in the second half of paragraph 7 of his decision letter. He suggested that that advice encourages gypsies to provide their own private sites where they can permanently settle. That is a misunderstanding of the effect of that advice. The intention is, as the Circular makes clear, to enable those of gypsy status to enjoy their nomadic lifestyle and, at the same time, to have more permanent accommodation to which they can come and go. But if they give up their lifestyle, it is not part of the intention of Circular 1/94, as I understand it, to provide a permanent retirement place.[11]Mr Watkinson has made - and I do not mean this disrespectfully - valiant attempts to support the Inspector's decision on the basis that the Inspector could have found that the intention was temporary only. That, however, is not what the Inspector did find. The Inspector's view, as to the injustice in finding that if a person ceases to be a gypsy simply because ill health or infirmity restricted their ability to travel, cannot be read, in my judgment, as meaning the Inspector was persuaded or was finding that the Doran family was suffering only a temporary restriction. Of course, if, as in my view it must be, this decision is remitted for rehearing, the issue of permanence of intention will have to be reconsidered; albeit any evidence upon that matter will no doubt be tested as to its consistency with the evidence given at the inquiry leading to the present decision.[12]As Clarke LJ said at paragraph 61 of the Wrexham decision:
"It seems to me... that, depending upon the circumstances of a particular case, a person may continue to have a 'nomadic habit of life' even though he is not travelling for the time being and may not do so for some considerable time, perhaps because of illness or the educational needs of his children, provided that he has not abandoned his nomadic habit. As Auld LJ has observed, the decisions on the facts in Bungay and O'Connor are examples of a person and/or his family retaining his status notwithstanding that it was likely to be a considerable period before he or they were likely to resume travelling. Thus all depends upon the facts of the particular case."
[13]That judgment, in my view, explains the decision of the Court of Appeal on 25th March of this year in a case as yet inadequately reported, upon which Mr Watkinson has placed reliance, Basildon DC v First Secretary of State and Cooper [2003] EWHC 2621 Admin. His researches have procured the Inspector's report which was, in that case, unsuccessfully impugned by the present appellants. In that case the Inspector had set out the law as to gypsy status, as it appears to me, correctly. He said at paragraph 39 of his report:
"Gypsies are defined in Section 16 of the Caravan Sites Act 1968 as persons of a nomadic habit of life whatever their race or origin. My attention was drawn at the inquiry to a number of judgments which have clarified how this definition should be applied. These were (a) Regina v South Hams District Council (1995), (b) Hearne v Secretary of State for Wales (1999), (c) Wrexham Borough Council v National Assembly for Wales (2002) and (d) O'Connor v Secretary of State for Transport, Local Government and the Regions (2002)... These decisions make clear that there should [be] a connection between the travelling of those claiming to be gypsies and the means whereby they make or seek their livelihood. Moreover, gypsy status may be lost, even in the case of a person from a long established gypsy family, if that nomadic habit of life is not to be continued. However, where a person is no longer able to travel because of old age or ill health, or because of the educational needs of children, gypsy status may be retained."
That summary of the law contrasts with the decision of the Inspector in the present case which proceeded on the basis that if a person was no longer able to travel because of ill health, gypsy status would be retained.[14]The High Court and the Court of Appeal considered whether the Inspector in the Cooper case had correctly applied the law to the facts of that case. The Court of Appeal construed the Inspector's references to restriction upon the appellants' travelling, as indicating a finding of an intention to resume travelling when possible. On that basis they found no error of law in the Inspector's report which was adopted in the Secretary of State's decision.[15]In the appeal before me the Inspector has recorded that the Doran family have now decided to settle down on the appeal site, and that the decision made by the family was "to give up travelling and cease their nomadic lifestyle." Such findings are incompatible with gypsy status and the decision must therefore be remitted for rehearing.[16]MR BEDFORD: My Lord, can I ask, formally, for the following orders to be made? Firstly, that your Lordship grants permission for the appeal under section 289 to be brought.[17]THE DEPUTY JUDGE: Yes.[18]MR BEDFORD: Secondly, that your Lordship then allows that appeal and remits the decision to the Secretary of State for redetermination. Thirdly, that your Lordship allows the application under section 288 and quashes the planning permissions which have been granted.[19]THE DEPUTY JUDGE: Planning permissions, you say?[20]MR BEDFORD: Because there were two enforcement notices, one was operational and one was use, so there were two planning permissions.[21]THE DEPUTY JUDGE: Yes.[22]MR BEDFORD: My Lord, that is the matter in terms of the order on the applications. My Lord, on costs, the position is as follows: obviously the general principle would be that the claimant would look to recover its costs. In the first instance it would look to recover its costs from the First Secretary of State. There has been some correspondence with the First Secretary of State and your Lordship may have seen that there was a --[23]THE DEPUTY JUDGE: Yes, I have.[24]MR BEDFORD: There was a letter indicating there was an acceptance of a liability to pay costs up to, I think, the date of 11th August 2003, which was when the Secretary of State indicated an intention to submit to judgment.[25]THE DEPUTY JUDGE: What date?[26]MR BEDFORD: My Lord, it was 11th August. It is a letter of 22nd March 2004 from the Treasury Solicitor to Mr Freer of the Administrative Court Office.[27]THE DEPUTY JUDGE: Yes.[28]MR BEDFORD: My Lord, the position is this: there has been prepared a normal schedule of costs simply seeking costs in a global sum of £6,330.20. So the position is that the First Secretary of State has indicated an acceptance to pay costs up to 11th August. The second defendants, as we understand it, are legally aided, Community Legal Fund Service Order. So, my Lord, the orders that I would ask is that the First Secretary of State be ordered to pay the claimant's costs to 11th August 2003, and we have agreed, although it is not in writing because there was a telephone conversation between my instructing solicitor and Treasury Solicitors --[29]THE DEPUTY JUDGE: I will have to say, I think, to be subject to detailed assessment if not agreed.[30]MR BEDFORD: Well, my Lord, can I suggest rather than doing that you deal with it in a slightly different way, because if there has to be detailed assessment that itself will potentially create --[31]THE DEPUTY JUDGE: No, if not agreed. If you had put before me agreement by the Secretary of State of course I would have made an order accordingly, but I do not think I can do it on the basis of reported telephone conversations which no doubt will lead to subsequent agreement, but not to agreement that has so far been made in a form which I think the court ought to act on.[32]MR BEDFORD: My Lord, so be it. That relates to the costs up to 11th August 2003: detailed assessment, if not agreed. My Lord, so far as the balance of the costs are concerned, and on that basis I cannot give your Lordship a figure because if one does not have the first figure -- but, my Lord, in relation to the balance of costs then, that order to be made against the second defendant but not to be enforced without leave of the court.[33]THE DEPUTY JUDGE: Well, I think the formula is questions of enforcement to be postponed, is it not, in accordance with section --[34]MR BEDFORD: That may be a more appropriate formula, my Lord. I was relying on my experience, but it has no doubt been overtaken by events.[35]THE DEPUTY JUDGE: It has, and I am never really quite certain what the formula is. I am being helped from below. (Pause) So, the balance of costs, questions of enforcement to be subject to Access to Justice Act, is what you are asking for I assume?[36]MR WATKINSON: My Lord, yes. In fact I had a formula written out, but I am quite sure your learned associate's formula, from what I can pick up, is the same in substance as the one that I was going to propose. So the order for costs is subject to the determination of the appellant's liability to pay under section 11 of the Access to Justice Act 1999.[37]THE DEPUTY JUDGE: Thank you.[38]MR WATKINSON: I was also, of course, going to ask for a detailed assessment of the costs incurred on the second respondent's Community Legal Services public funding certificate, because that will be an assessment of the costs to be paid out of the fund to those instructing me.[39]THE DEPUTY JUDGE: So public funding assessment.[40]MR WATKINSON: Public funding assessment, indeed.[41]THE DEPUTY JUDGE: Yes, is there anything else with which I should deal?[42]MR WATKINSON: I have no observations to make on the first three orders my learned friend asks for because they follow from your Lordship's judgment.[43]My Lord, I do ask for permission to appeal. I, of course, am aware that your Lordship has found in accordance with a recent decision of the Court of Appeal, and that that recent decision of the Court of Appeal was sought to petition their Lordships' house to appeal against that, and that petition was refused for reasons one does not know, of course, because their Lordships' house do not give reasons, but this is an issue which is plainly not going to go away. The issue is of whether a retired gypsy, either through ill health or age, can retain gypsy status, and I would ask for permission to appeal on that issue.[44]THE DEPUTY JUDGE: Well, my understanding is that the issue, as you formulate it, has in fact been decided, and decided in a way which you would wish. The difficulties you have confronted in this case is that the Inspector applied a different and wrong test. It does not seem to me that as the law has now been significantly clarified, not only by the Wrexham case, but also by the case of Cooper, upon which you have relied, there is any great difficulty for appellants in the same position as your client's, or for local planning authorities, or the inspectorate, now to apply coherent tests. So I would refuse leave.[45]MR WATKINSON: I am obliged.[46]THE DEPUTY JUDGE: What I am writing, Mr Watkinson, is that I am refusing on the ground that there is no reasonable prospect and it no longer poses any issue of public importance, for the reasons I have attempted to give.[47]Is there anything else with which I should deal? I am obliged to you both.