Brazil, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2009] EWHC 424 (Admin)

[2009] EWHC 424 (Admin)Case No CO/619/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 9th February 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE PLENDER
Between
THE QUEEN ON THE APPLICATION OF BRAZILClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantTEWKESBURY BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr H Richards (instructed by South West Law) appeared for ClaimantMr J Auburn (instructed by the Treasury Solicitor) appeared for First Defendant for The Second Defendant did not attend and was not represented
J U D G M E N T
[1]MR JUSTICE PLENDER: This is an appeal from a decision of the Inspector, Claire Sherratt, dated 10th December 2007 by which she upheld the refusal of the Secretary of State for Communities and Local Government and the Tewkesbury Borough Council to grant planning permission to William Brazil and others in respect of a site at The Ryders, Minsterworth, Gloucestershire.[2]The applicants for planning permission originally asked for development consent for nine pitches at the site, but at the hearing reduced their application from nine pitches to six. The Council has explained to me that by this they intended to convey six pitches for static caravans and six for touring caravans.[3]It has been submitted on behalf of the Secretary of State (and having reviewed the records I accept) that the application was at all stages considered by the competent planning authorities as one in which the integrity of the family was central. This is a family which consists of two members having special needs, namely a child called Billy, aged 7, who has special educational needs and his great grandmother, Ivy Brazil, who is 78, and other members of the family who do not have the special needs, namely William Brazil senior, William Brazil junior, his wife Cheryl, Luke Brazil, West Brazil and Elvis Brazil and his wife Tracey. It is common ground that the applicants are gypsies or travellers.[4]In the course of the consideration of the application, a number of references have been made to Article 8 of the European Convention on Human Rights. There is, for example, a reference to that Article in the original decision letter and the Inspector's decision at paragraph 43. As I read it, references to Article 8 in those contexts developed the importance the applicants placed on the integrity of their family. It is clear that all discussion before the Inspector at an informal hearing was about the grant or refusal of planning permission for six caravans. The Inspector herself said at paragraph 23 of her report:
"I accept that the increase in traffic movements would therefore be based on four additional units, as discussed at the hearing."
By that last phrase, the Inspector indicates that the discussion at the hearing was about four additional units to accommodate the family as an unit. There was no discussion, according to that passage of her report, about dividing the family into smaller units and granting permission for only some.[5]It has been argued on behalf of the appellants by Mr Richards that it is to be inferred that there was a discussion before the Inspector about the possibility of development consent being granted for two sites. In this context he refers me to paragraph 21 of a statement by Mr Cox, solicitor for the applicants. Mr Cox states:
"There was at the hearing a clear discussion regarding the number of traffic movements which could be related to use of the house and I believe it was clear that any limited permission would be accepted as the main concern was for the claimant's mother and grandson."
Mr Cox, I am told, is a very experienced solicitor, particularly in planning applications for traveller or gypsy families. He is cautious and precise in the language that he uses. First he says there was a discussion regarding the number of traffic movements which could be related to the house. He was here referring to a house which, if not derelict, is in need of substantial improvement and is currently unoccupied. It is outwith the authority of the Planning Inspectorate to refuse permission for the use of that house. Mr Cox says there was clear discussion regarding the number of traffic movements which could be related to that house. In the second part of the sentence I have quoted, he said he believes it was clear that any limited permission would be accepted as the main concern was for the claimant's mother and grandson. He there states his belief that limited permission would be accepted by the Council and by the Secretary of State for Communities and Local Government, since the main concern of the applicants was for the two members of the family who had special needs. Mr Cox's belief that limited permission would be granted falls far short of the statement that there was an application made to separate the family and to be granted limited permission for those two and some others to look after them. It is noteworthy here that he is imprecise in saying "any limited permission".[6]The Inspector herself, in a report written for the purposes of today's hearing states as follows:
" . . . as indicated all discussions at the hearing related to six caravans, not any different number."
Later she says:
"Further, the Council had not had an opportunity to comment on the number of units it may have found acceptable, and its reasons for doing so."
[7]It has been submitted to me that these two statements, the one by Mr Cox and the other by Mrs Sherratt, are inconsistent and I should prefer the statement of Mr Cox. I find no inconsistency between them. In the first place, as I have observed, Mr Cox does not say that he applied for planning permission in respect of a number of caravans or pitches other than six. In the second place, it is to be expected that so experienced a solicitor would have raised this issue if he had required a decision to be made upon it. Thirdly, I have no reason to doubt the Inspector, who Mr Richards says no doubt relied upon her notes in writing her report. Fourthly, if a question of an application for permission in respect of fewer than six units had been raised, it would have had to be considered by the Council. If there were to be an application for two pitches, one of them to be used for Billy and his great grandmother, the other to be used by members of the family to look after them, the Council would need to know who those others were, whether the proposed arrangements would necessitate regular visits to the house by carers, either for the elderly lady or for the child, and would have needed to respond accordingly. Fifthly, and finally, the Council's case throughout was put upon the basis that:
"The appellant's case is to be determined in its entirety, ie, for the siting of nine static and nine touring caravans on the appeal site."
[8]The Council itself stated at the outset that "it is important to stress that the appellant's case is to be determined in its entirety". If the appellant's case were not to be determined in its entirety but to be considered only in parts then I would very much have expected any solicitor, let alone one of Mr Cox's experience, to say so and would have expected to find this recorded in the material before me.[9]The Inspector herself expressly clarified the issues at the hearing. No alternative proposal was put to the proposal for six pitches. In those circumstances, I am unable to accept the submission made by Mr Richards that the Inspector erred in failing to consider an application for two pitches comprising one static and one mobile caravan each.[10]In the alternative, Mr Richards submits that even if the point was not raised so giving rise to an obligation for consideration by the Inspector, it was perverse of the Inspector not herself to raise the point at an informal hearing such as that which took place on this occasion.[11]I acknowledge that circumstances may arise in which it is or may be incumbent on an inspector to raise a point at an informal meeting which has not been expressly raised by the parties. That may be so, in particular, in a case in which the applicant is without a representative. But I do not accept the submission that in a case such as the present it was incumbent upon an Inspector to raise an application other than that which has been advanced and which might be expected to meet with success. In Dyson v Secretary of State for the Environment [1998] PLR 54 at page 62, Pill LJ said:
"An appellant must be expected to tell the Inspector all he wishes to tell him."
In Top Deck Holdings v Secretary of State for the Environment and Woking Borough Council [1991] JPL 961 at 964, Mann LJ quoted, with approval, the judgment of Forbes J in Marie Finlay v Secretary of State for the Environment and London Borough of Islington [1983] JPL 802. In that case Forbes J said:
"It is one thing to say that where the question of conditions was being canvassed it might be sensible for the Secretary of State to consider making a slight alteration to the condition if that would deal with the problems that might arise [reference is made to MJ Shanley Ltd v Secretary of State and South Bedfordshire District Council]. It was a wholly different thing to suggest that where there had been no canvassing of any possible condition, the Secretary of State was bound to look around and consider whether there was or was not some possible condition which might be attached which might save this planning application."
[12]I can find no basis upon which it can properly be said that the Inspector failed in her duty in omitting to raise the prospect of planning permission for two pitches rather than six. Moreover, I would be reluctant to hold that an Inspector had such an obligation. It would be to impose on an Inspector an intolerable obligation to consider any application less than that for which application has been made which might result in a successful treatment by a planning authority. This would alter the nature of the planning inquiry considerably.[13]Finally, I have to add that it seems to me there is no appreciable advantage to be gained by the present appellant if, as Mr Richards maintains, planning permission would be bound to be granted for an application at the same site confined to the use of two pitches for use by the elderly Mrs Ivy Brazil and her great grandson, Billy. If that is the case, the simple remedy for the present appellants is to set out their case with sufficient detail and submit it to the planning authorities for appropriate approval or for challenge if initially unsuccessful. For these reasons, the present application fails and I refuse the appeal.[14]MR AUBURN: My Lord, the claimant is publicly funded in this case so we simply ask for the usual order for costs in relation to publicly funded litigants, which is costs be ordered to the defendant but not to be enforced without leave of the court.[15]MR JUSTICE PLENDER: Taxation of the appellant's costs, not to be enforced without leave of the court.[16]MR AUBURN: Thank you, my Lord.[17]MR RICHARDS: Could I simply ask for detailed assessment.

MR JUSTICE PLENDER: You need detailed assessment of costs?

[19]MR RICHARDS: Yes.[20]MR JUSTICE PLENDER: You may have that. Thank you very much for your submissions.