Hughes, R (on the application of) v Office of the Deputy Prime Minister & Ors [2005] EWHC 2850 (Admin)

Case No CO/2887/2005[2005] EWHC 2850 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 14th November 2005
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF HUGHESClaimant-v-
Between
OFFICE OF THE DEPUTY PRIME MINISTER AND OTHERSDefendant
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 A MASTERS (instructed by Community Law Partnership) appeared for CLAIMANTMR T MOULD (instructed by the Treasury Solicitor) appeared for FIRST DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal against the refusal by the Secretary of State to grant planning permission for a development consisting of the stationing of caravans for gypsies on a site in South Bedfordshire. The site itself is within the green belt and accordingly, in order to obtain permission, the appellants would have to show that there were very special circumstances.[2]The appeal against the refusal by the local planning authority was heard by an Inspector over a number of days in 2004. In due course, the Inspector recommended that planning permission should be granted but it should be limited to a permission for three years and contain a personal condition so that the appellants, and only the appellants, could benefit from it. What led the Inspector to reach that conclusion was because he was persuaded that the effect upon the education of the appellants' children, and to a lesser extent the effect upon some of the appellants' medical needs, were such as made it proper to regard the circumstances as very special. Thus, notwithstanding the harm that would otherwise be established in planning terms, he recommended that permission should be granted.[3]The Secretary of State did not agree with his Inspector's recommendations and it is as a result of that that this appeal is brought. A number of grounds have been taken. The most significant of these is that there has been a failure to comply with Rule 17(5) of the Inquiry Procedure Rules in that the Secretary of State has reached conclusions of fact which are contrary to those of the Inspector and has relied on fresh evidence without giving the appellants an opportunity of dealing with that material. In addition, it is submitted that in certain respects the decision was one which was irrational, whether because perverse or because there was a failure to have regard to material considerations.[4]I should just cite Rule 17(5) of the Town and Country Planning Inquiry Procedure (England) Rules 2000. Rule 17 deals with procedure after an inquiry and paragraph 5 provides:
"If after the close of an inquiry the Secretary of State -- (a) differs from the inspector on any matter of fact mentioned in or appearing to him to be material to a conclusion reached by the inspector; or (b) takes into consideration any new evidence on a new matter of fact (not being a matter of Government policy) and is for that reason disposed to disagree with a recommendation made by the Inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reason for it: and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of Government policy) of asking for the reopening of the inquiry."
That rule is one which is there in order to ensure that the whole procedure is fair and that no finding based on new evidence or which is contrary to a finding made by an Inspector is allowed to affect the decision of the Secretary of State without the appellants being given an opportunity to deal with it. Of course, it would work the other way round if the new material was a matter which adversely affected the local planning authority which had, in a given case, refused planning permission.[5]This is, as I say, a case involving gypsies. The development sought was largely retrospective in as much as they had come on to the site in question some years ago. It is not entirely clear from the documents before me precisely when, but it was at least a year or so before the inquiry before the Inspector. They had stationed caravans there without obtaining any planning permission, and had done work to the site in establishing hard standings and so on to enable the site to be properly and efficiently used.[6]The Inspector decided (and there is no issue about his decision in this respect) that the development would be contrary to a number of relevant policies relating to development in the green belt and that it would produce significant harm to the green belt because it was inappropriate, there was a loss of openness, there was encroachment and there was a harm to the character and appearance of the countryside. In addition, the site scored poorly on the basis of sustainability. Accordingly, there were significant policy and planning objections to the grant of planning permission and generally, therefore, it would normally have been refused.[7]In his decision letter the Secretary of State, having summarised the objections, which he accepted and against which there can be and is no appeal, continued in paragraph 17:
"In the light of his conclusion at paragraph 16 above, in the Secretary of State's view the crux of his decision turns on whether there are very special circumstances which outweigh the harm caused to the green belt through inappropriateness, other specific harm and any other harm. These circumstances must be of sufficient weight to overcome the significant harm to the green belt. The Secretary of State has considered those circumstances raised by the appellants below."
He then went on to consider the various matters which were material in reaching the decision in question.[8]It is common ground that the problems relating to the education of the appellants' children -- because their education would be likely to be disrupted if they had to leave the site in question -- are material in planning terms. So much was decided by Ouseley J in Basildon District Council v Secretary of State for the Environment, [2001] JPL 1184. A passage from his decision in that case was cited with approval by Lord Bingham in the House of Lords in South Buckinghamshire District Council v Porter [2003] 2 AC 559. The passage is at page 580 where Lord Bingham referred to the relevant passage in Ouseley J's judgment. In paragraph 33 Ouseley J had said:
"From that analysis I conclude, first, that quite apart from any consideration of common humanity, the needs of these particular gypsy families were a material consideration because they had a need for this development in this location. Those personal circumstances entitle the Secretary of State to have regard to them as relevant to the decision he had to make in the public interest about the use of the land for the stationing of residential caravans. Their particular need for stability in the interest of the education of the younger children can also reasonably be seen as an aspect of the wider land use interest in the provision gypsy sites, which interest includes the need for stable educational opportunities. There is also a public interest in the planning system providing stable education opportunities for gypsy families, including these gypsy families."

Lord Bingham continued:

"Thus the Secretary of State was entitled to have regard to the personal circumstances of the gypsies as he did in the case of Mr Berry and Mrs Porter. When application is made to the court under section 187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and nonetheless resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests. It is, however, ultimately for the court to decide whether the remedy sought is just and proportionate in all the circumstances, and there is force in the observation attributed to Vaclav Havel, no doubt informed by the dire experience of central Europe: 'The gypsies are a litmus test not of democracy but of civil society'."
[9]Porter was an injunction case. Those observations of Lord Bingham are in the context of an application for an injunction. In fact, in this case the local planning authority applied for an injunction and that application has been, as I understand it, adjourned, no doubt pending consideration of my decision on this appeal. Obviously, if I decide in favour of the appellants and the matter has to go back for reconsideration by the Secretary of State, it will be pointless to pursue the injunction proceedings until a decision is finally reached. Equally, if I decide against the appellants then no doubt the local planning authority will consider whether to pursue the injunction proceedings in the light of any observations I may see fit to make.[10]The Secretary of State considered a point which had been raised as to the validity of part of the relevant policies in the local plan. That was an issue which had been raised before the Inspector. He decided that there had not been a quantitative assessment of the need for such provision for gypsies which might have affected the validity of the particular policy. But at the end of the day he decided that that did not justify the setting aside of the relevant policy. There has been no appeal against that and so I need not go into it any further.[11]He considered the general need for sites for gypsies, both generally and in South Bedfordshire, and he agreed with the Inspector that the relevant report indicated that the county needed to provide another hundred pitches, some of which might be in South Bedfordshire, and he noted that discussions were continuing. But the recognition that there was a need for sites did not, in his view, by itself constitute a very special circumstance. I do not think it could be suggested, and it certainly has not been suggested, that that by itself would justify a decision in favour of the appellants so, again, I need not go into that aspect in any further detail.[12]He then went on to consider (and this is an important matter) the availability of alternative sites. I should read paragraph 24 of the decision letter in which this is said:
"The Secretary of State agrees with the Inspector that the appellants have regularly resided in or resorted to the area but there are no readily available alternative authorised sites and, in the event of this appeal being dismissed, the appellants will be faced with a return to roadside camping."
That reflects and applies and approves what the Inspector had said in the first few sentences of paragraph 124 of his report which was in largely the same terms. But the Inspector continued -- and I will come back to this when dealing with the education of the children -- that the return to travelling and roadside camping would severely hamper the possibility for continued education for the various children, and that would be, in the Inspector's view, a regrettable consequence and a substantial and weighty material consideration. Going back to the decision letter, at paragraph 24 the Secretary of State continues:
"He notes that there is a waiting list for County Council owned sites. However, he also notes that the appellants have not sought being placed on the waiting list for the purpose of sites. [He refers in that regard to the group evidence and the appendices to it of the Council witness]. The Secretary of State is not able to conclude on the basis of the available evidence that the Inspector's view at paragraph 126 of his report that the appellants had been looking for a site for a considerable period is correct, although he acknowledges that they have made some searches for a site. However, he agrees with the Inspector's conclusion at paragraph 127 that there is a need for sites in the area, that the appellants have personal needs for the site, that they have no immediately available alternative site to go to, and that their aim is to achieve a settled base within their usual area of home. He gives these latter four factors considerable weight."
[13]Mr Masters complains that in that paragraph the Secretary of State has differed from the Inspector on a finding of fact, namely that the appellants had been looking for a site for a considerable period and that there was no proper basis for that difference, because the reference to the proof of evidence of the Council witness did not reflect the evidence that in fact had been given and tested in cross-examination. That indeed was a point made by the Inspector at the outset of his report when he said:
"I have included proofs of evidence with documents attached to this report, though it should be remembered that cross-examination in relation to the content of the proofs means that they cannot be wholly relied upon."
[14]Mr Mould accepted that on the face of it that was a failure to accept a finding of fact, but his submission was that in the context of the decision as a whole it was not a material matter. Indeed, that, I think, is clearly correct. Quite why the Secretary of State thought it necessary to make that observation I do not know, because the fact is that he accepted that there was no available alternative site to go to and that the appellants would be faced with a return to roadside camping. Whatever efforts may or may not have been made to locate alternative sites would be irrelevant if there were in fact no alternative sites available. Since there were in fact no alternative sites available, it is difficult to see how the Secretary of State's conclusion that the Inspector knew that the appellants had been looking for a site for a considerable period was not correct, could have had any material effect.[15]If one looks at the wording of Regulation 17(5)(a) and (b), one sees in the wording of (a) that it relates to any matter of fact mentioned in the conclusion reached by an Inspector. One goes on to note that the paragraph continues "and is for that reason disposed to disagree". It was a matter being referred to, but it cannot conceivably in the circumstances be said to have been a reason which led to his disagreement. In those circumstances, in my judgment, there was no need to apply 17(5) and the failure to seek further representations on that point could not have had any material bearing upon the decision in due course reached.[16]It is, of course, important to note that the Secretary of State has positively agreed with the Inspector that there were no other available sites, that if the decision went against the appellants they would, in order to comply with the law, have to leave the site and would therefore be faced with a return to roadside camping. That means that they could not stay in South Bedfordshire because it was common ground that there were no available sites in South Bedfordshire and, furthermore, all sites outside urban areas in South Bedfordshire were almost certainly going to be green belt, so they would be faced with the same objections. The result was that they could not lawfully stay in South Bedfordshire. It would not stop them trying to do so, no doubt, because they had -- again this was a positive finding -- connections with South Bedfordshire. That was and always had been their base area, albeit they were travellers. Accordingly, they were inevitably at risk of being moved on wherever they went within the district and, of course, there was always the danger that if they maintained their presence on different unlawful sites within the district, the Council might seek, as they would be entitled to do, an injunction to prevent them settling anywhere that was unlawful within its area.[17]The Secretary of State then went on to consider what both counsel recognise is the crucial matter in this appeal: namely, the educational needs of the children. In paragraph 25 the Secretary of State stated that he recognised the educational needs of the children and agreed that continuity of education would benefit them. He further agreed with the Inspector's conclusion that children's education generally might be disrupted in a settled community, but he considered that the consequences were more serious for gypsy and traveller children who had a history of fragmented education. Thus, he agreed with the Inspector that the benefits of leaving a settled school environment carried weight.[18]I think it is probably desirable that I should refer in this context to the paragraphs in the Inspector's report which are material before coming back to the Secretary of State's a decision. The material paragraph is 127 which in fact is the paragraph in which the Inspector sets out his conclusions based upon his findings on the various material considerations. What he says is this:
"First, although the Council policy has been drawn up in a manner which does not wholly follow the advice on the relevant circulars, I do not accept that this is prejudicial in the circumstances of South Bedfordshire in this case. The policy itself is realistic. Secondly, I am satisfied that there is a need for gypsy sites in the area generally, and this is verified by [previous findings]. The need is one which requires addressing in the short term. Thirdly, the appellants have particular need based on the fact that they would have no alternative site to go to. There are no available places on sites which are appropriate for their needs and it is not disputed that they would be forced to return to camping in further unauthorised locations if they had to leave the appeal site. Fourthly, their children's education, and to a lesser extent their healthcare, would be harmed by any outcome which resulted in a return to travelling from unauthorised site to unauthorised site. There are a number of children who would be so affected and it is my assessment that this matter should carry substantial weight. The disruption caused to the education of these children would be unwelcome and harmful to their futures. These last three material considerations, in my judgment, are sufficient to allow for the very special circumstances needed to outweigh the green belt and other harm identified earlier, especially as the harm for landscape to could be mitigated to a degree by planting. These conclusions would, in the normal course of the events, be sufficient to warrant the grant of a permanent planning permission."
He then went on to indicate that because there might well be some movement in the possibility of establishing acceptable alternative sites in the relatively near future because of expansions proposed and the likelihood of green belt boundaries being reviewed, he took the view that there should be a temporary permission personal to the appellants.[19]It is therefore necessary now to see how the Secretary of State distinguished that. He did so at paragraphs 26 and 27. What he said was this:
"(26) The Secretary of State agrees with the Inspector at paragraph 124 of his report that there is no readily available alternative authorised site if the appellants are required to leave this site, and this will lead to a return to travelling and roadside camping and the discontinuity of education. The Secretary of State gives this considerable weight. However, having regard to the legal obligations on the local education authority to make appropriate educational provision for children of school age resident in this area, including the children on the site, the Secretary of State is satisfied that appropriate education will be available to the children notwithstanding a refusal of planning permission and a lack of immediately available alternative sites. In the light of this, the Secretary of State considers that the harm to the children's continuity of education if they were required to leave the appeal site is not a very special circumstance of sufficient weight to overcome the harm caused by the development. (27) In so concluding, the Secretary of State has had particular regard to the fact that on the available evidence the educational needs of the children at the Evergreen site not out of the ordinary. Only three of the six children were receiving any recognition for their educational needs and the evidence suggests that no special educational needs were being provided for any of the six, and that all of the children were making adequate progress. For all these reasons, the Secretary of State concludes that the educational needs of the children resident at the site do not amount to very special circumstances."
He disagrees with the Inspector that continuity of education would be so severely hampered by a move from the site as to amount to a very special circumstance.[20]The Inspector, incidentally, in dealing with the children's education had, in paragraph 121, indicated that his approach was to be that the problems relating to education resulting from any movement from a particular settled place would not be regarded as very special unless the consequences of being moved would be to interfere with the opportunity to maintain continuous and stable education. So it is obvious that continuity, in context, involved that there should be continuous and stable education.[21]Mr Masters has attacked the reference by the Secretary of State to the legal obligations of the local education authority as itself being a matter of new evidence which should have led to a notification under 17(5) and the opportunity to make submissions about it. The existence of legal obligations by a local education authority is, as it is seems to me, not something which requires any fresh representation. It is a matter of common knowledge and indeed essentially a matter of what the law of the land is in that regard. The real question is whether that was capable of enabling the Secretary of State properly to conclude as he did, and was capable of counteracting the material relied on by the Inspector. As I say, there is no doubt that there is such a legal obligation. On the other hand, the disruption caused by having to go to other places and to try to find somewhere to camp with the prospect of being moved on from time to time was inevitably going to make it more difficult for the children to attend any particular school. The evidence was, I am told, and it is hardly surprising, that before the families settled in the site in question, the children's education had suffered as a result of the lack of any permanent base. Indeed, there was evidence given to the Inspector by the headmaster of the school which some of the children attended which indicated how they had improved once the stability of residence had been established.[22]Furthermore, as indeed the Secretary of State accepts, the obligation upon a local education authority is to make appropriate educational provision for children of school age resident within its area. The prospect would be, if the appellants and their families were unable to remain on the site in question and because there was nowhere else in South Bedfordshire, that they might not be able to be remain in South Bedfordshire. Indeed, they might be removed from time to time to another area. If they were removed to another area, it would no doubt be said that the other area, if it was a different education authority, would then have the responsibility of complying with the legal obligation.[23]As it seems to me, it is clear that the existence of the legal obligation would not meet the objections which were raised by the Inspector concerning the problems that would be created by the lack of any settled residence. Furthermore, Mr Masters submits that in assessing the weight to be attached to that matter -- and clearly the Secretary of State did attach considerable weight to it because he refers to it specifically as something which enabled him to reach a contrary view to that of the Inspector -- it was necessary to consider carefully what was the evidence relating to the effect upon the children. Mr Mould submits that that is apparent from what the Inspector decided. He reached his conclusions and the Secretary of State has not gone behind those conclusions. But if the Secretary of State is going to reach a different conclusion, as it seems to me in the context of this case -- and I emphasise this case because the circumstances of this case are peculiar to it and there is no precedent to be derived from any decision reached upon this case -- it was essential that the details should be known to the Secretary of State of precisely what was involved in the disruption. He has not been in a position to follow that through. One of the reasons why he has not been in a position to follow that through is that the evidence given by the school headmaster was evidence given without any statement having been put in, so there is no specific record of what was said save for the conclusion of the Inspector that there would be significant disruption.[24]Thus, although it is not, in the circumstances, to be regarded as a matter falling within 17(5), it seems to me that if this was to be regarded as a material factor which justified disagreement with the view of the Inspector, the Secretary of State ought to have enabled himself to have the very fullest information possible relating to it. As I say, and I repeat, it is difficult to see how the legal obligation by itself could meet the objection, for example, that the families might well find themselves unable to settle anywhere in South Bedfordshire, certainly for any significant period of time.[25]The other factor relied on was that there were no special educational needs for any of the children in question. That was partly because the settled existence over the preceding year or so had led to the improvements. That would be likely to be changed if the existence became unsettled. So that point could only be taken so far. It is material that there were no educational needs because obviously, if there had been, the disruption would have been that much greater and accordingly there would have been a greater weight to be attached to the effect of disruption. So to an extent the Secretary of State was quite right to rely upon that as reducing the weight otherwise to be attached to the disruption. But, as I say, he should have reminded himself that the lack of any educational problems was something which itself derived from the settled status and was likely to be put in jeopardy if the families were required to move.[26]The health needs of the appellants was something which was relied on. The Secretary of State decided that they were not of sufficient importance to amount to very special circumstances. It seems to me that he was entitled to take that view. Indeed, in fairness to the Inspector, the health needs were not something which weighed very heavily in his decision. They were a factor, but by themselves were by no means a determinative factor.[27]The Secretary of State, having decided in those circumstances that planning permission should not be granted, did consider whether a temporary permission was required, but he said that the appeal site should not be released in planning terms and therefore no planning permission should be granted. Again, if he was correct it would not be possible, in my view, to criticise the decision that there should be no planning permission at all.[28]He went on then to consider the appellants' human rights in the context of Article 8 and decided that there would be no violation in that the removal constituting the interference would be proportionate, and therefore there would be no breach of Article 8. The Inspector dealt with this separately as well. He stated in paragraph 130 of his report that refusal would not be disproportionate in terms of Article 8 were it not for the circumstances which would be likely to flow from that in terms of the established need for sites, the lack of alternatives, and disruption to education and healthcare. He concluded:
"Should the Secretary of State not agree that very special circumstances exist in this case, then it is my view that interference with the appellants' home and private and family life would not be disproportionate in this case."
[29]It seems to me that in the context of a case such as this, where the planning consideration that militates in favour of the existence of very special circumstances and so the grant of planning permission is the very matter which is relevant in considering whether there has been a breach of Article 8, it is artificial to differentiate between the two. If the decision is that it is disproportionate to require the removal then it would follow, surely, that there would be very special circumstances to permit the appellants to stay where they are. Effect would be given to that by granting a planning permission which need not be permanent and which could, and indeed should in a case such as this, be limited in time to the individuals in question. That is the way of seeing that they would not be treated in the manner which constituted a breach of their human rights.[30]It seems to me the equation of human rights breach with planning considerations is something which was recognised and applied by Sullivan J in Butlin v Secretary of State for the Environment [2002] JPL 570. I do not need to go into it in any further detail.[31]Mr Mould had made the point that even if planning permission were refused, that does not in itself mean that the appellants would be required to leave immediately. Some form of enforcement proceedings would have to be brought. The court, in looking at those proceedings, would have to decide whether there was any basis for the appellants being able to remain for a limited period so that the enforcement could be deferred. That would have the same effect in the sense that it would give them the necessary protection and the stability for the children's education, but it would preserve the decision that in planning terms a grant was inappropriate. The effect of a temporary grant and the effect of a deferment of any enforcement, so far as the individual appellants are concerned and indeed those who live nearby who no doubt objected to this particular development, would be, on the face of it, the same. I appreciate that it is not quite the same because if planning permission is granted and there is a failure to move, then whatever enforcement action is determined has to be taken. But there is no difference in reality because if it is refused action will be taken. It may be deferred. If still there is no movement then the court will have to reconsider whether any further time should be allowed. So there is not, I would have thought, a very great difference in principle in the circumstances. It may depend, possibly, upon whether enforcement action is taken so there is an enforcement appeal. I know that in one similar case the Secretary of State on an enforcement appeal has decided that planning permission should not be granted but that two years should be given within which compliance with the enforcement notice should be made.[32]There were subsidiary points taken, but I do not think in the circumstances that it is necessary to deal with them. The main point, as I say, was the children's education. In my judgment, for the reasons that I have given, the Secretary of State did not deal properly with that matter. Essentially, as it seems to me, he had regard to an immaterial consideration in as much as he used the legal obligation of the Council as a matter which persuaded him to decide differently to the Inspector when it could not reasonably have led him to that decision. At least it could not reasonably have led him to reach that decision unless he obtained for himself all the necessary information to ensure that he was well aware of the problems. I do not say that even if he were aware of all the problems he would be, as a matter of law, unable to conclude as he did. Of course, I cannot and do not interfere with his planning judgment. It has been Mr Mould's argument that that is indeed what he was doing. That is certainly what he was purporting to do, but in reaching that judgment he had to have regard to all the matters to which he ought to have had regard. For the reasons I have given, as I say, I do not think in the circumstances of this case that he did.[33]Accordingly, I propose to allow this appeal. It seems to me that the matter should go back to the Secretary of State to consider what course he should adopt in the light of this judgment. It may well be that he will require further representations from the parties. Whether that should be in the form of written submissions or in the form of re-opening the inquiry to get fuller findings on this aspect will be a matter for him to decide. What I do not do, because I do not consider it would be appropriate, is to say anything which suggests that in the light of my decision today it will be necessary for the Secretary of State to follow the recommendation of the Inspector. He may well decide that he will not but, as I say, if he does want to reach that decision he must do so on the basis of full and proper information.[34]MR MASTERS: My Lord, I would ask for costs. My instructions are that Mr Hughes is not Legally Aided for this part of the matter.

MR JUSTICE COLLINS: Mr Mould, I do not imagine that you can oppose the principle.

[36]MR MOULD: I do not oppose the principle. What I am instructed is that we have not received any notification of any schedule.[37]MR JUSTICE COLLINS: What I suggest is that if one makes the usual order either you can agree them or, I suppose I will just say to be subject to detailed assessment if not agreed. If you want, we can do a summary assessment. I am prepared to do that once you have the necessary information. I am not sure if that is desirable.[38]MR MOULD: I would respectfully submit it is undesirable that the appellant --

MR JUSTICE COLLINS: Well, Mr Masters, you ought to have produced a schedule.

[40]MR MASTERS: My Lord, this is a point that can be taken up on summary assessment. I realise that we ought to have done something.[41]MR JUSTICE COLLINS: Well, I think what I do say is that if a detailed assessment is needed you may well find yourself not getting any costs of that assessment because of your failure to provide a schedule. I think that is the best I can do.[42]MR MOULD: I am grateful for that indication, my Lord.[43]MR JUSTICE COLLINS: I do not think I can tie the costs judge, but I can certainly give that indication.[44]MR MOULD: I was going to float the question of whether it might be sensible to make some sort of directions that the matter should be referred to your Lordship within 28 days.

MR JUSTICE COLLINS: If you want me to do that, I will.

[46]MR MOULD: I appreciate that places an administrative burden on the court which the court would ordinarily avoid, but it does mean that the parties then --[47]MR JUSTICE COLLINS: Yes, I suppose I would say I am happy to do that. The only problem is frankly this. I, as I suspect most judges in my position, are already very much out of touch with the sums that are appropriate. I do not doubt that the Treasury Solicitor's rates are going to be reasonable. They are usually less than some others. Of course, they will be to some extent constrained by what is available on the delay, I suspect. But it is always difficult one, time spent. I will do it if you want.[48]MR MOULD: My Lord, on reflection, it does occur to me that I may be inviting the court in these circumstances to add unnecessary burden. Your Lordship's indication is very helpful. If I may say so, that ought to be sufficient.

MR JUSTICE COLLINS: I would have hoped that most of these claims are capable of being agreed.

[50]MR MOULD: Yes. My Lord, I am grateful for that. I am content with that indication.[51]MR JUSTICE COLLINS: I will make the order that costs if not agreed will be subject to detailed assessment, but with the caveat that I have indicated. It can be drawn to the attention of the costs judge, if it ever gets there, that your failure to provide a schedule should be taken into account.[52]MR MASTERS: I am grateful, my Lord. My Lord, the only other matter I ask to you consider, I do not know what the status of the injunction will be now as a result --

MR JUSTICE COLLINS: There is an injunction in existence, is there not?

[54]MR MASTERS: I do not think you are troubled to deal with that today, save that there may be something in reserving injunction to yourself if at all possible. I certainly urge my Lord to do that. It would save considerable court time.[55]MR JUSTICE COLLINS: I suppose there is something to be said for that. Obviously the injunction will be held over pending the further consideration. Mr Mould, you do not really have any interest in who deals with it, do you?[56]MR MOULD: I do not. I am completely neutral on that.[57]MR JUSTICE COLLINS: What I shall say is that if possible. If for whatever reason I am not available at the important moment it should not be deferred just because I am not available.[58]MR MASTERS: My Lord, if possible is good enough. I am grateful.[59]MR MOULD: My Lord, I do have an application for permission to appeal.

MR JUSTICE COLLINS: I think you know what the answer is going to be.

[61]MR MOULD: I do. My Lord, I appreciate my Lord's indication in relation to that. May I briefly explain the position?

MR JUSTICE COLLINS: Yes, of course.

[63]MR MOULD: Your Lordship has founded his decision on the basis of the Secretary of State needing to make further inquiries. As I understand it that is --[64]MR JUSTICE COLLINS: Yes, I think there are two strands. One that the reliance on the legal obligation does not meet the objection because of the disruption possibility and, secondly, even if he was going to rely on that he ought to have made sure that he had got full information about the real effect of the movement.[65]MR MOULD: Yes. My Lord, I am grateful.

MR JUSTICE COLLINS: As I say, there are two strands.

[67]MR MOULD: In relation to those strands, I make two points. Firstly, essentially the process of submission that I set out in the notes that I handed in after the short adjournment. What I say is there is a realistic prospect that I can persuade the Court of Appeal that your Lordship's approach is too interventionist.

MR JUSTICE COLLINS: I think you will have to persuade the Court of Appeal.

[69]MR MOULD: Indeed so. The second point is in relation to the wider interest in this case. Whilst I appreciate that your Lordship has expressed his judgment on the basis that this is very much a case that turns on its own facts, I did make the point in argument that there will no doubt be a substantial number of other cases which do have similarity with this one in that they involve applications for planning permission for gypsy caravan sites within the green belt where powerful reliance is placed on the impact of children resident on the site, where, regrettably or not, the fact is that the availability of alternative sites can meet the needs of the families concerned is low, and where the Secretary of State is faced then with the balance he is faced with here. The concern on the part of the Secretary of State is that if he is, as your Lordship has required, to undertake further inquiries --[70]MR JUSTICE COLLINS: It depends. If the Inspector reaches his conclusions and the evidence is there, the Secretary of State can proceed. Equally, I have not said, and I deliberately did not say, that the decision must be in favour of the appellants in this case. All that I have said is that I do not think the Secretary of State's reliance on that factor was sufficient by itself.[71]MR MOULD: My Lord, I do appreciate that. I will not trouble your Lordship further, simply to explain the basis for the point. I do say that there will be other cases, no doubt a substantial number of other cases, which are broadly consistent with that.

MR JUSTICE COLLINS: You could say that about Ouseley J's decision.

[73]MR MOULD: The point there is to the relevance in law.[74]MR JUSTICE COLLINS: But once you get the relevance, the decision in that case was that the Inspector was right and the Secretary of State accepted that. It is quite clear from the number of these cases that there have been decisions either way. They depend upon the individual facts of a case. Sometimes the absence of sites in the area is not perhaps important if the travellers in question do not have and have not had a particular association with the area.[75]MR MOULD: Well, it may be --

MR JUSTICE COLLINS: That is a factor that obviously could be material.

[77]MR MOULD: It may be that the lesson to be learned in this case is that the Secretary of State should look to his Inspector to be far tougher in requiring his procedure rules to be complied with.

MR JUSTICE COLLINS: I am sure that is right.

[79]MR MOULD: This is by no means the only case where there has been a failure in this kind of field of planning.

MR JUSTICE COLLINS: I think there is a lot to be said for that.

[81]MR MOULD: That is very helpful. My Lord, be that as it may, my submission is simply that the amount of material before the Secretary of State through the report of the Inspector may not necessarily reflect the information that has been presented to --[82]MR JUSTICE COLLINS: That is perfectly true. As I say, it will depend upon what the Secretary of State is going to rely on. After all, not all Inspectors do recommend in green belt cases involving gypsies that there should be permission. It will depend upon the circumstances.[83]MR MOULD: I acknowledge that. My Lord, my point, simply, is that there is a wider interest in this case and that adds to the strength of the case.[84]MR JUSTICE COLLINS: I can see that there is a wider interest, but I do not think this case is the right one to pursue that. If you want to take this further you will have to persuade the Court of Appeal. You may well do so. I am not prepared to grant permission.[85]MR MOULD: I am very grateful. Thank you.[86]MR JUSTICE COLLINS: We have, Mr Mould, as you probably know, to fill in this form for the Court of Appeal. I confess that I object to doing it because it is all on the transcript. I have said "See transcript".[87]MR MOULD: Thank you very much.[88]MR JUSTICE COLLINS: Thank you both very much; equally for your succinctness. This was given an estimate of three days to the court. I cannot imagine why.[89]MR MASTERS: That was because the injunction proceedings.[90]MR JUSTICE COLLINS: Even so. That was, I think, a little pessimistic. Thank you.