Brentwood Borough Council v Secretary of State for Communities & Local Government & Anor [2008] EWHC 1001 (Admin)

Case No CO/4670/2007[2008] EWHC 1001 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 21st April 2008
Strand
London WC2
B E F O R E:
MR JUSTICE CRANSTON
Between
BRENTWOOD BOROUGH COUNCILApplicant-v-
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTRespondentMRS JULIA ANN MACDONALDRespondent
(Computer-Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Robin Green (instructed by Messrs Sharpe Pritchard) appeared for Applicant for The First Respondent did not appear and was not representedThe Second Respondent appeared on her own behalf, assisted by Bernadette Reilly as a McKenzie friend
J U D G M E N T
[1]MR JUSTICE CRANSTON: The background of this planning appeal is the shortage of publicly authorised gypsy and traveller sites in Essex and their complete absence in the area covered by the applicant in this case, the Brentwood Borough Council ("Brentwood"). There is a not unfamiliar story of gypsies and travellers, not able to get access to these limited public sites or access to private sites, then establishing their mobile homes elsewhere. In this case they have done so on agricultural land which they have purchased but for which the planning authority, the applicant in this case, Brentwood, refused planning permission. However in this case their appeal to a planning inspector was successful, hence this appeal by Brentwood.[2]But if this is the backdrop, the issue before me is a narrow legal issue. In this case the agricultural land where the mobile homes are situated is green belt. The matter arises as to whether the planning inspector, who considered and granted temporary planning permission, did so in accordance with law. Mr Green, who represents Brentwood, says that the inspector was wrong in law. Mrs MacDonald, who represents the gypsies and travellers in this case, the second respondents, wants to uphold the decision to grant temporary planning permission. She appears before me today with some of residents. In the main Mrs Reilly, one of the residents, spoke on behalf of Mrs MacDonald and the other residents. Background[3]The circumstances in somewhat greater detail are these. In June 2003 Mrs MacDonald and others moved their mobile homes onto land adjacent to 77 Roman Road, Mountnessing in Brentwood. Since then the families have lived at the site. Three of the children are attending a local secondary school and nine are in primary school. One of the children, of whom they are justifiably proud, has done well in her GCSEs. Another young woman is attending work experience as part of a college course in the area.[4]In August 2003 Brentwood issued enforcement notices against the use and development of the site as a caravan site. The Secretary of State dismissed appeals against the enforcement notices in September 2004, but extended time for compliance. Then in August 2005 Mrs MacDonald applied for planning permission to retain the use of the site for residential purposes, together with the stationing and occupation of five mobile homes and day rooms, hard surfaces, fencing and walls.[5]In March 2007, at a point when the council had not issued a decision, the matter went on appeal to a planning inspector. Mrs MacDonald and the residents were represented by counsel at the hearing before the inspector. In April 2007 the inspector issued her decision letter, in which she granted planning permission, for 5 years, for five mobile homes. Brentwood now appeals to this court, under section 288 of the Town and Country Planning Act 1990, in effect seeking to squash the decision of the inspector. The appeal by Brentwood was filed in June 2007. In December Brentwood and the Secretary of State for Communities and Local Government, the first respondent, agreed a consent order. The Secretary of State represents the planning inspector. Under the consent order the parties agreed that the decision letter of the Secretary of State be quashed. The Secretary of State conceded:
"... that the decision was erroneous in law on the first ground stated therein because the Inspector adopted an unlawful approach to the assessment of 'very special circumstances' for the purposes of Green Belt policy in Planning Policy Guidance Note No. 2. In particular, she proceeded on the incorrect basis that merely because the harm by reason of inappropriateness, and any other harm, is outweighed by other considerations those factors can be characterised as very special circumstances."
That of course left Mrs MacDonald and the residents, as the second respondents in this appeal, having to decide what to do. The refused to agree to the consent order. Adjournment[6]The first issue I had to consider this morning was whether I should grant an adjournment, so that Mrs MacDonald could be legally represented. The solicitors who had represented Mrs MacDonald and the residents wrote to the Treasury Solicitor, after the decision letter of the inspector in June 2007, enquiring about what the Secretary of State intended to do, noting that the Legal Services Commission would not grant legal aid unless they knew whether the Secretary of State was defending proceedings. In December the solicitors were told of the consent order between Brentwood and the Secretary of State. Nothing seemed to be done until March 2008, when they indicated to Brentwood's solicitors that Mrs MacDonald and the residents did not wish to enter into a consent order and that they were making an application for legal aid.[7]To put it no higher, the lapse of time between December and early March before Mrs MacDonald's solicitors acted is surprising. There was then further delay, about four weeks, before the Legal Services Commission reviewed the matter. It wanted further information about the means of Mrs MacDonald. In a letter to Brentwood's solicitors on 11th April Mrs MacDonald's solicitors said that public funding would then be limited to obtaining counsel's opinion, and clearly there would not be time to do that and prepare for the hearing today. Mrs MacDonald's solicitors wrote to the court on 17th April 2008 and reiterated these points. They said that they would not be in a position to proceed today and applied for the case to be taken out of the list and relisted.[8]Under CPR 3.1(2)(b) the court has a wide discretion whether or not to adjourn a case. In this case the factors which I considered this morning were, first of all, the solicitors' dilatory approach to the matter. As I have indicated, the solicitors knew about this matter in December 2007, but did not seem to act until March when they applied to the Legal Services Commission. At this point I can attach no blame to Mrs MacDonald or the residents. The delay seems to be on the part of the solicitors. There is no explanation in their letter to the court as to why nothing happened between December and March.[9]The second factor, however, is more significant. It is this. If I had had any doubt about the outcome of the appeal, I would have adjourned the matter. However, as I will explain in a moment, the inspector's decision is clearly flawed in law and certainly once the Secretary of State had conceded that it became almost impossible, in my judgment, for the second respondents, Mrs MacDonald and the residents, to succeed in this appeal. The Law[10]Let me turn to the planning law background. Planning Policy Guidance 2: Green Belts (dated 1995 and amended in 2001) sets out the government's policy on the purpose and designation of green belts and the control of development within them. In particular, paragraphs3.1 and3.2 set out that there is a general presumption against inappropriate development within the green belt area. Such development should not be approved, says paragraph 3.1:
"... except in very special circumstances."
Paragraph 3.2 of the planning policy guidance goes on to provide that very special circumstances to justify inappropriate development will not exist:
"... unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
[11]The Circular 01/2006 "Planning for Gypsy and Traveller Caravan Sites" dated February 2006 provides that new gypsy and traveller caravan sites in the green belt are normally inappropriate development, referring back to that concept in paragraph 3.1 of the planning policy guidance document. More fully, paragraph 49 of the 2006 document says that there is a general presumption against inappropriate development within the green belt, that new gypsy and traveller sites are normally inappropriate development as defined in the planning policy guidance on green belts, and that:
"National planning policy on Green Belts applies equally to applications for planning permission from gypsies and travellers, and the settled population. Alternatives should be explored before Green Belt locations are considered. Pressure for development of sites on Green Belt land can usually be avoided if the local planning authority allocates sufficient sites elsewhere in its area, in its LDF [Local Development Frameworks], to meet identified need."
[12]So the policy set out there is to encourage a greater provision of sites for gypsies and travellers. It is fair to say that in the course of the submissions which Mrs Reilly made on behalf of Mrs MacDonald and the residents there was criticism of the lack of sites in Brentwood and more generally in that part of Essex. Some criticism was also directed towards the failure of Brentwood properly to calculate the need in the area, and also to respond to recent government initiatives to ensure that there are sufficient sites. While these criticisms may be well founded, they are not relevant to the legal issue before the court.[13]The legal issue in this case revolves around the interpretation of paragraphs3.1 and3.2 of Planning Policy Guidance 2. In my judgment the authorities now make clear that two questions must be asked if inappropriate development in the green belt is to be approved. First, is the harm to the green belt by reason of inappropriateness and any other harm clearly outweighed by other considerations? Secondly, are there circumstances to approve development which can reasonably be described, not merely as special, but as very special?[14]Sullivan J in Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 808 (Admin) considered the approval by the planning inspector of a gypsy caravan site in the green belt. Sullivan J held that there had to be something capable of being reasonably regarded as very special circumstances. He said that it was very difficult in that particular case to see how the relatively unexceptional educational needs of two traveller children "could reasonably be said to clearly outweigh, not merely the limited harm caused to the openness and purpose of the Green Belt, but the harm by reason of inappropriate development when coupled with the further limited harm to the openness and purpose of the Green Belt" [73].[15]Subsequently, in the decision R (Chelmsford Borough Council) v First Secretary of State [2003] EWHC 2978 (Admin), Sullivan J said that there were no prescribed list of very special circumstances. Whether any circumstances were "very special" has to be considered not in the abstract but in the context of the particular circumstances, but that he could not accept that if the decision-maker concluded that a particular factor outweighed the harm to the green belt, that factor could therefore be described as a very special circumstance. His Lordship held that the words "very special" must be given their ordinary and natural meaning. At paragraph 56 he concluded:
"The circumstances must be not merely special in the sense of unusual or exceptional, but very special. The decision taker, whether it be the Secretary of State, one of his inspectors or a Local Planning Authority, has to be satisfied that the circumstances relied upon are indeed very special, but it does not follow that, merely because the decision taker considers that they outweigh the harm to the Green Belt, they are reasonably to be described as very special. The breadth of discretion that is conferred upon decision takers in other (non-Green Belt) cases is deliberately constrained by paragraph 3.1 of PPG2. The decision taker must be satisfied that there are very special circumstances. His judgment that there are such circumstances is subject to review on Wednesbury grounds. A factor is not a very special circumstance merely because the decision taker chooses to describe it in that way. The decision taker must be able to point to a circumstance or circumstances which, viewed objectively, are reasonably capable of being described as 'very special'."
[16]The House of Lords did not disagree with this approach in the leading decision of South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953. That was a case where a Romany gypsy had bought a site in 1985 and had lived there ever since with her husband, in breach of planning control. The site lay within the green belt. The evidence was that the gypsy in that case, Mrs Porter, suffered from serious ill-health. She suffered from chronic asthma, severe generalised arthritis and chronic urinary tract infection, and she also had diabetes and high blood pressure. The inspector considered that displacing her would make it difficult for her to continue with her medical treatment. He concluded that the status of Mrs Porter as a gypsy, the lack of alternative sites for her to go to in the area and her chronic ill-health constituted very special circumstances, which in that case were sufficient to override national and statutory development policies, in other words, the green belt policies to which I have referred. The inspector said that he had taken into account all the other matters raised, but none of them had been of sufficient weight to override his conclusion on the main issue.[17]Lord Brown of Eaton-under-Heywood (with whom the law lords agreed) said that in his conclusion the inspector's reasoning was both clear and ample. Here was a woman of 62 with serious ill-health, with a fear of being put into permanent housing, with no alternative site, whose displacement would imperil her continuing medical treatment and probably worsen her condition. That was explained in the decision letter. The inspector took the view that Mrs Porter's very special circumstances, including the harm if she were forced to move, justified the environmental harm of her remaining. Not every inspector would have reached that conclusion, but there was no mystery as to why the inspector in that case had come to his conclusion and therefore his decision was not unlawful. The inspector's decision[18]In this case the decision letter was issued in April. The inquiry ran over four days and there was a site visit. In the decision letter the inspector refers to the background, some of which I have outlined earlier. She then refers to the planning policy and says, in paragraph 7.1, that one of the two main issues she has to consider is whether the development would be appropriate in the green belt and, if not, whether there are any other considerations that would amount to very special circumstances to overcome the harm by way of inappropriateness and any other harm. (The other main issue, noise pollution, is no longer in contention.) The inspector then, in paragraph 8, sets out what she regards as the issue. She considers that the proposal is inappropriate development to which Planning Policy Guidance 2: Green Belts advises is by definition harmful. She then says:
"... I shall now consider any very special circumstances which should be weighed against the harm by way of inappropriateness and any other harm."
In other words, in this sentence she is indicating that in the following paragraphs she will identify the very special circumstances required in terms of the legal test to which I have referred.[19]The first paragraphs following this sentence, paragraphs 9 to 12, are labelled "policy and need". At the end of these she says that she considers that the unmet need and the current lack of alternative sites should be accorded considerable weight in favour of the proposal for a temporary period. There can be no criticism of that in terms of a conclusion, but nothing is said specifically in that conclusion that this is a very special circumstance. She then goes on to consider, in the following three paragraphs, the "wider landscape setting". I have to say I am somewhat puzzled, given the sentence I quoted from paragraph 8, as to how this discussion is pertinent to the very special circumstances to be considered.[20]Then paragraph 16 refers to the educational needs of the children living on the site. In the last sentence of that paragraph, the inspector says:
"In my opinion, the educational needs of the children carry considerable weight in support of the appeal as their education would suffer if they were evicted from the site without any alternative settled base."
Again, one can well understand the appropriateness of that particular remark, but in terms of the legal requirement there is no identification of that as a very special circumstance.[21]Similarly in paragraph 17, which refers to the access which Mrs MacDonald and the residents have now been able to achieve in terms of medical treatment and the fact that they have registered with GPs, the inspector says:
"... I consider that access to medical services is a material consideration that should also be accorded considerable weight."
Again one can understand the force of that particular remark, but there is no identification of that as a very special circumstance.[22]Then, in terms of the overall conclusion of the inspector, she says at paragraph 19 that the environmental harm has to be weighed against the need for sites for gypsies and travellers in the district, the lack of alternative sites, with the evicted families probably having to resort to unauthorised encampments, including the roadside, the harm to the education of the children from eviction without an alternative site on which to settle, and the potential loss of medical services. She then concludes:
"On balance, having regard to the recent Government advice in ODPM Circular 01/2006 on transitional arrangements, I consider that the other considerations when taken together weigh heavily in favour of the proposal, outweighing the harm and thus providing very special circumstances for planning permission to be granted."
[23]In my judgment, this demonstrates the failing in the inspector's approach to the matter. Very special circumstances are erroneously treated as a mere balancing exercise. She has assumed that because in her opinion the variety of factors outweigh the environmental harm caused, those factors are therefore to be described as very special. This is the very approach which Sullivan J in the Chelmsford case warned was unlawful. "Very special circumstances" is used as a label to justify this conclusion rather than as an essential part of the analysis. The factors relied on must be very special in character before they can justify the grant of planning permission, whatever weight they may carry.[24]In my conclusion, therefore, this appeal must be allowed. In my view, it would be inconceivable that there would not be a further inquiry, an inquiry in which an inspector would apply the law as laid down by this court as identifying the very special circumstances to be considered in relation to the environmental harm of green belt development. Afterword[25]Mr Robin Green, who appeared for Brentwood, and for whom I am deeply indebted for the legal analysis and also for his assistance, has made enquiries of the Treasury Solicitor on my behalf. The Treasury Solicitor has indicated that the matter will be redetermined by way of a second inquiry. The more difficult issue is the expense which Mrs MacDonald and the residents has incurred at the first inquiry. The Treasury Solicitor has indicated that if Mrs MacDonald and the residents were to succeed at a second inquiry, then they may be able to claim the costs incurred from the first inquiry, although the prospects of that claim succeeding cannot be guaranteed.[26]In my view, this is not especially satisfactory. Therefore in my view this is a matter where the Lord Chancellor, under section 6(8) of the Access to Justice Act 1999, should authorise the funding of advocacy services before the subsequent inquiry. It seems to me that this is a case where Mrs MacDonald and the residents have incurred expenses, where through no fault of their own the planning inspector has misdirected herself in law and where they would now be at a disadvantage in terms of the second inquiry in putting their case. It may be that much of the material from the earlier case can simply be advanced at the further inquiry. But Mrs Reilly, on behalf of Mrs MacDonald and the residents, has identified today some possible new factors which will need to be taken into account at the further inquiry. I can do no more, however, than to indicate the way I think the residents should be funded at that further inquiry. I wish them the best.[27]Thank you.[28]MR GREEN: My Lord, in that event, I ask formally for an order quashing the decision of the Secretary of State given by her inspector.

MR JUSTICE CRANSTON: Yes.

[30]MR GREEN: That leaves the issue of costs. As your Lordship will have seen, in so far as the Secretary of State is concerned --

MR JUSTICE CRANSTON: They have to pay, yes.

[32]MR GREEN: They consent to payment of costs up to 21st November. The question then arises what should happen regarding the costs incurred after that.

MR JUSTICE CRANSTON: Yes.

[34]MR GREEN: Your Lordship will not forget those costs have been incurred simply because the second defendants have chosen not to consent, but rather to oppose this application.

MR JUSTICE CRANSTON: Yes.

[36]Mr Green, as I said earlier, I am troubled by the behaviour of the solicitors in this case. That being the case, I am wondering how we should proceed.[37]MR GREEN: One possibility, if the court invites it, is for the claimant to make a wasted costs application against the solicitors themselves. There would then have to be an opportunity for them to make representations explaining why they should not have to pay those costs, and that could be done on paper.

MR JUSTICE CRANSTON: Yes.

[39]MR GREEN: But it may be that they will say that whatever mistakes they may have made, nonetheless the second defendants did not wish to consent to the quashing of the order but wished to oppose it, and these costs would have been incurred whatever they had done.[40]MR JUSTICE CRANSTON: Yes. Frankly, one does not know what has happened, but my feeling is that if they had acted earlier, the solicitors could have got counsel's advice and could have told Mrs MacDonald and the residents that there was no chance of succeeding.[41]MR GREEN: Yes.

MR JUSTICE CRANSTON: That is my concern.

[43]MR GREEN: Yes. My Lord, I appreciate that point, in which case, absent instructions from the local authority, I do provisionally ask for wasted costs against the legal representatives of the second defendants.[44]MR JUSTICE CRANSTON: Yes. Shall we give them 28 days?[45]MR GREEN: My Lord, yes, 28 days. Perhaps the application could be dealt with entirely on paper.

MR JUSTICE CRANSTON: On paper, yes.

[47]MR GREEN: They have 28 days to respond. I do not know what the practice is, but we then get a chance to rebut that response.

MR JUSTICE CRANSTON: Yes.

[49]Do you understand that? I have made an order against your solicitors to explain why they did not act. Rather than make a costs order against you, I have asked them to show cause — or to give reasons, in other words — why they should not pay the costs.[50]MRS REILLY: My Lord, can I ask you question? Have we got to start all over again now?[51]MR JUSTICE CRANSTON: Unfortunately there has to be another inspector's inquiry, yes. But it may be that — a lot of the evidence is already there and I have indicated that I would hope that this is a case where you would be able to get assistance from the Legal Services Commission to be able to put your case if there are any new factors involved. But the basic problem was the inspector got it wrong in terms of how she went about it. That was the problem.[52]MRS REILLY: If our solicitors don't have to pay the costs, do we have to pay as well?[53]MR JUSTICE CRANSTON: No, at this stage. So you do not have costs against you.[54]Anything more?[55]MR GREEN: My Lord, no.[56]MR JUSTICE CRANSTON: Mr Green, I do want to thank you for the enquiries you made over lunch about those two issues.[57]MR GREEN: My Lord, I am obliged.