Linfoot v Secretary of State for the Department for Communities and Local Government [2012] EWHC 3514 (Admin)

Case No CO/6897/2012[2012] EWHC 3514 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Civil Justice Centre
Venue 1 Bridge Street West Manchester M60 9DJDate 10 December 2012
Before
HIS HONOUR JUDGE SYCAMORE(Sitting as Judge of the High Court)
Between
MICHAEL LINFOOTClaimantTHE SECRETARY OF STATE FOR THE DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENT1 st DefendantCHORLEY BOROUGH COUNCIL2 nd Defendant
Marc Willers (instructed by Lester Morrill incorporating Davies Gore Lomax) for ClaimantThe First Defendant not being present and not being representedDavid Manley QC (instructed by Chorley Borough Council Legal Services) for Second DefendantHearing Hearing date: 7 November 2012
JudgmentHis Honour Judge Sycamore:
[1]This is an application under section 288 of the Town and Country Planning Act 1990 (as amended) (“The Act”) by which the claimant challenges the decision of the first defendant’s inspector (Mr Dakeyne) dated 22 May 2012 to refuse to grant him temporary planning permission and seeks an order quashing that decision.[2]The claimant and the second defendant were represented in the proceedings before me. The first defendant did not appear and was not represented. An unusual feature of the case is that the first defendant had agreed, before the hearing date, to concede the claim and a consent order had been lodged by which the first defendant agreed that the decision of the 22 May 2012 should be quashed on the grounds that the inspector failed to give adequate reasons for his conclusion that temporary planning permission should not be granted. No other information was available to the court as to the reasons for the first defendant’s decision to concede the claim. The second defendant declined to sign the consent order.

THE LEGAL FRAMEWORK FOR THE STATUTORY CHALLENGE

[3]Section 288 of the Act provides that a decision may be challenged as follows:
“(1) (b) (i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that action; and … (5) On any application under this section the High Court - …. (b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”
[4]Although the first defendant has conceded the claim it is clear in my judgment that in performing its functions under section 288(5)(b) the court must, nevertheless, form its own objective assessment in determining the challenge. Although the court should give weight to the fact that the first defendant, who has responsibility for applying the policies, has conceded the claim that weight must be limited given the absence of any explanation from the first defendant as to why the claim was conceded.[5]It is well established that a claim under section 288 lies not upon the planning merits, but on grounds of law only: grounds upon which a claim for judicial review may be brought. In Ashbridge Investments Limited v Minister of State for Housing and Local Government [1965] 1 WLR 1320, Lord Denning at 1326 said:
“Under this section it seems to me that the court can interfere with the Minister’s decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa. It is identical to the position when the court has power to interfere with the decision of a lower tribunal which erred in point of law.”
[6]The limited nature of the challenge has been made clear by the courts on many occasions. The weight to be given to any particular material consideration and the making of a planning judgment is a matter for the decision maker, not for the court. For example Lord Hoffman in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 (HL) 780 said at paragraphs 56 & 57:
“…. the law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the Planning Authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision making process. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State ….”
[7]A number of other propositions were advanced as factors which the court should take into account when considering whether there are grounds for quashing the decision. i. The decision letter must be read as a whole in a reasonably flexible manner and not as a contract or statute, see Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1WLR 153 at p 165 G, per Lord Bridge. ii. The requirement to take account of relevant matters is a requirement to take into account a matter which might cause the decision maker to reach a different conclusion to that which he would reach if he did not take it into account – that is to say that there is real possibility that the consideration of the matter would have made a difference to the decision, see Bolton MBC v Secretary of State for the Environment [1990] 61 P& CR 343 at pp 352 – 353. iii. The reasons must be proper, intelligible and adequate. It is for the applicant to satisfy the court that a lacuna in the stated reasons is such to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision making process, see Save Britain’s Heritage v Number 1 Poultry Limited at pp 165, 166 and 168 per Lord Bridge and South Bucks DC v Porter [2004] UKHL 33 at p 36. iv. The duty on a decision maker is to have regard for every material consideration but it is not necessary that he mentions them all. It is only necessary for the decision maker to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues Bolton MBC v Secretary of State for the Environment [1990] 61 P& CR 343 and South Bucks DC v Porter [2004] UKHL 33. v. In exercising their powers the decision makers must not depart from the principle of natural justice, Fairmount Investments Limited v SSE [1976] 1WLR 1255 at 1236D. vi. For a decision to be perverse it must be one that no reasonable person in the position of the decision taker, properly directing himself, could have reached, Seddon Properties Limited v Secretary of State for the Environment [1978] P& CR 26.

THE FACTUAL BACKGROUND

[8]The land in question is at Heath Paddock, Hut Lane, Heath Charnock, Chorley, Lancashire. It is accepted that the land lies within the Green Belt.[9]The claimant and others placed caravans on the site on 5 June 2009. The second defendant accepts that the claimant and other occupants of the site are gypsies as defined by Annex 1 Planning policy for traveller sites (PPTS) March 2012 and the first defendant’s inspector proceeded on the basis that the planning policies for gypsies and travellers applied.[10]An application was made for retrospective planning permission for retention of the caravans on 8 June 2009. Planning permission was refused on 18 August 2009 and enforcement notices were issued by the second defendant requiring cessation of the use of the site for caravans and for removal, inter alia, of hard standings from the site.[11]On 13 May 2010 an inspector (Mr Fox) dismissed appeals against the enforcement notices and on the 22 September 2010 His Honour Judge Grenfell, sitting as a Judge of the High Court, refused permission to appeal Mr Fox’s decision under section 289 of the Act.[12]An application for change of use for the siting of two static caravans and four touring caravans and the storage of two towing caravans was refused by the second defendant on the 2 June 2011. That decision was appealed and the first defendant’s inspector (Mr Dakeyne) issued his decision dismissing the appeal on 22 May 2012. It is that decision and, specifically, the refusal by the inspector to grant temporary planning permission which is the subject of this challenge. This judgment deals only with issues relating to the refusal to grant temporary planning permission.

PLANNING POLICY FOR TRAVELLER SITES

[13]Section 225 of the Housing Act 2004 provides that: “(i) Every local housing authority must, when undertaking a review of housing needs in their district under section 8 of the Housing Act 1985, carry out an assessment of the accommodation needs of gypsies and travellers residing in or resorting to their district”.[14]PPTS was the government’s new planning policy on the provision of caravan sites for gypsies and travellers and replaced Circular 1/2006 “Planning for Gypsy and Traveller Sites” and Circular 04/2007 “Planning for Travelling Showpeople” which should be read in conjunction with the government’s “National Planning Policy Framework” (“NPPF”) published on the 27 March 2012.[15]PPTS expects Local Plans to be prepared in a manner that addresses traveller needs in their area, see paragraph 3:
“3 …. overarching aim is to ensure fair and equal treatment for travellers, in a away that facilitates the traditional and nomadic way of life of travellers while the respecting the interests of the settled community.”
[16]In assessing need Local Authorities are expected to work collaboratively with neighbouring authorities, see paragraph 4 PPTS.[17]Paragraph 9 of PPTS states that Local Planning Authorities should when producing their Local Plan:
“a identify and update annually, a supply of specific deliverable sites sufficient to provide 5 years’ worth of sites against their locally set targets. b identify a supply of specific developable sites or broad locations for growth, for 6 years to 10 and, where possible for years 11 to 15. c consider production of joint development plans that set targets on a cross authority basis to provide more flexibility in identifying sites, particularly if a Local Planning Authority has special or strict planning constraints across its area. Local Planning Authorities have a duty to co-operate on planning issues that cross administrative boundaries. d relate the number of pitches or plots to the circumstances of the specific size and location of the site and the surrounding population’s size and density. e protect local amenity and environment.” e protect local amenity and environment.”
[18]The key criticism which is made by the claimant is that the Inspector focused on Chorley rather than the wider area as required by PPTS and that if he had grappled with the issue of the wider area he might have reached a different conclusion (see Bolton MBC v Secretary of State for the Environment [1990] 61 P& CR 343).[19]It is necessary to consider the case advanced by the claimant before the Inspector for the grounds of temporary planning permission which was dealt with in paragraphs 86-89 of the claimant’s closing submissions:
“86 In the alternative it is submitted that temporary planning permission ought to be granted for at least [….] years in order to enable this Council and the neighbouring Local Authorities to comply with paragraph 25 of PPTS (and their statutory duty under section 225 of the Housing Act 2004) by assessing need for themselves (or in co-operation with each other) and then demonstrating that they have an up-to-date 5 year supply of deliverable sites, presumably by adopting site specific Development Plan Documents. 87 Such Development Plan Documents will be likely to assist the appellant’s extended family and the Boswell family to locate, and then obtain planning permission for use of another parcel of land in Chorley or the wider area. In the meantime the families would have the benefit of a settled and secure base from which they can access healthcare and educational facilities and they would not have to suffer the hardship that a forced nomadic way of life would necessarily entail. 88 The appellant can no longer rely on the advice in paragraphs 45 and 46 of Circular 1/06 or it seems yet rely on advice in paragraph 25 of the PPTS. However, he asserts that there must be a realistic expectation that the planning circumstances will change within [….] years and contends that temporary permission should be granted for at least [….] years in order to allow those changes to take place and to allow for any slippage in the timetable and the development of new sites. 89 When considering whether to grant the appellant temporary planning permission the Inspector is invited to: • Follow the advice in Circular 11/95 on the grant of temporary planning permissions which is still extant; • Take account of the fact that any harm (eg in terms of the impact on the Green Belt or visual amenity) will necessarily be of only limited duration, and to conclude that this is a case in which such permission should be granted.” • Follow the advice in Circular 11/95 on the grant of temporary planning permissions which is still extant; • Take account of the fact that any harm (eg in terms of the impact on the Green Belt or visual amenity) will necessarily be of only limited duration, and to conclude that this is a case in which such permission should be granted.”
[20]In oral submissions a request was made for a 3 year temporary planning permission. Paragraph 25 of PPTS referred to in the closing submissions states that:
“25 Subject to the implementation arrangements at paragraph 28, if a Local Planning Authority cannot demonstrate an up to date 5 year supply of deliverable sites, this should be of significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission.”
[21]Paragraph 28 states that:
“28 The policy set out in paragraph 25 only applies to applications for temporary planning permission for traveller sites made 12 months after this policy comes into force.”
[22]As the policy came into force on 25 March 2012 it would thus only apply from 25 March 2013. It was therefore a matter which the Inspector could not take into account. It was for this reason that the claimant invited the Inspector, at paragraph 89 of the closing submissions, to follow the advice in Circular 11/95 on the grounds of temporary planning permissions which were still extant.[23]Circular 11/95 sets out advice on the use of temporary planning permission, at paragraphs 109 to 112, as follows:
“Principles applying to temporary permissions: 109 Advice on minerals permissions is given in Minerals Policy Guidance notes. In other cases, in deciding whether a temporary permission is appropriate, three main factors should be taken into account. First, it will rarely be necessary to give a temporary permission to an applicant who wishes to carry out development which conforms with the provisions of the Development Plan. Next, it is undesirable to impose a condition requiring the demolition after a stated period of a building that is clearly intended to be permanent. Lastly, the material considerations to which regard must be had in granting any permission are not limited or made different by a decision to make the permission a temporary one. Thus, the reason for granting a temporary permission can never be that a time limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities. If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted, then the only course open is to refuse permission. These considerations will mean that a temporary permission will normally only be appropriate either where the applicant proposes temporary development, or when a trial run is needed in order to assess the effect of the development on the area. Short term buildings or uses: 110 Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that intention, or because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified. For example, permission might reasonably be granted on an application for the erection of a temporary building to last seven years on land which will be required for road improvements eight or more years hence, although an application to erect a permanent building on the land would normally be refused. Trial Runs: 111 Again, where an application is made for permanent permission for a use which may be “potentially detrimental” to existing uses nearby, but there is insufficient evidence to enable the authority to be sure of its character or effect, it might be appropriate to grant a temporary permission in order to give the development a trial run, provided that such a permission would be reasonable having regard to the capital expenditure necessary to carry out the development. However, a temporary permission would not be justified merely because, for example, a building is to be made of wood rather than brick. Nor would a temporary permission be justified on the grounds that, although a particular use, such as a hostel or playgroup, would be acceptable in certain location, the character of its management may change. In certain circumstances it may be possible to grant temporary permission for the provision of a caravan or other temporary accommodation where there is some evidence to support the grant of planning permission for an application for an agricultural or forestry dwelling, but it is inconclusive, perhaps because there is doubt about the sustainability of the proposed enterprise. This allows time for such prospects to be clarified. 112 A second temporary permission should not normally be granted. A trial period should be set that is sufficiently long for it to be clear by the end of the first permission whether permanent permission or a refusal is the right answer. Usually a second temporary permission will only be justified where highway or redevelopment proposals have been postponed, or in cases of hardship where temporary instead of personal permission has been granted for a change of use.”
Short term buildings or uses:

Trial Runs:

[24]The Inspector dealt with the request for the grant of temporary planning permission at paragraphs 56 & 57 of his decision letter as follows:
“56 Circular 11/95 – The Use of Conditions in Planning Permissions indicates that a temporary permission may be justified where planning circumstances will change at the end of that period. The appellant suggests that a period of 3 years would allow the Council and other nearby authorities to carry out an up to date assessment of the need for sites and put in place measures to provide a 5 year supply of deliverable sites as required by the [Planning policy for traveller sites], including a site which would meet the longer term needs of the site occupants. A temporary permission would time limit the Green Belt harm. Allowing the site occupants to remain on the site for a period which ensure that their Human Rights would not be interfered with. 57 However, the existing GTAA do not show a need for a site in Chorley. The evidence produced by the appellant to demonstrate a need for a site in Chorley is not conclusive. Neither the existing or the emerging development plan provide for sites. There is no indication that the Council will embark on a new needs assessment either on its own or with neighbouring authorities, but if it does so there is no guarantee that such an assessment would reveal a need for a site or sites. In these circumstances I am not convinced that planning circumstances will change at the end of the temporary period. A further period of occupation of the site would perpetuate the substantial harm to the Green Belt which would not be outweighed by other considerations.”
[25]The claimant’s closing submission was based on the premise that both Chorley and its neighbouring authorities would be required to comply with the requirements of paragraph 25 and reassess needs. The Inspector, whilst not persuaded that the claimant’s evidence demonstrated the case for a site in Chorley, acknowledged that there was a need for sites at a regional and county level. He dealt with this at paragraphs 34 and 53 of his decision letter. “34 I conclude that there remains a significant need for sites at regional and county level. On the face of it there is no clear identified need for sites in Chorley District. The appellant’s evidence about need based on the incidences of encampments and the unauthorised occupation of the appeal site and other locations is not sufficient to demonstrate a clear need in the District. That said the lack of an up to date assessment of need in Chorley or in the wider area, the varied approach by Councils to provision, added to the anecdotal evidence about local activity, makes the position on need and provision more uncertain than that faced by the Inspector in 2010.” “53 In terms of factors in favour, the need for sites at a regional and county level should be given considerable weight. I attach limited weight to the case for a site in Chorley. The factors set out in Paragraph 34 are not conclusive enough to demonstrate a clear need. The personal circumstances of the site occupants carry significant weight. These comprise their need for accommodation and a settled base to allow access to education and health care and the promotion of general well being; and the lack of alternative sites in Chorley and the wider area. The absence of an alternative would mean that the occupants would probably need to resume roadside living with the associated problems of access to health care, education and a secure living environment. In addition the sustainability of the site should be given some weight.”[26]The Inspector recognised that the family had connections outside the immediate Chorley area and that alternative sites need not be in the Chorley District. He dealt with this at paragraph 40 of his decision letter. “40 The site occupants, particularly Mr Bird Senior, have long connections with the Chorley area. However, it is also apparent that the occupants have family and business connections with other parts of the region including, Bolton, Preston, Wigan, the Fylde and Cheshire. Therefore, an alternative site need not be in Chorley District. Indeed many of those considered lie beyond Chorley District. Some parts of the wider area are affected by Green Belt and other constraints. Other areas are less constrained. However, even within this wider context, it has not been demonstrated that an alternative site is available.” The Inspector concluded that there were no alternative sites then available to meet the site occupants’ immediate accommodation needs. The Inspector concluded that there were no alternative sites then available to meet the site occupants’ immediate accommodation needs.[27]The Inspector dealt with the weight of harm to the Green Belt at paragraph 52 of the decision letter. “52 Substantial weight is attached to the harm to the Green Belt arising from inappropriate development and loss of openness. PPTS advises that decision taking should protect Green Belt from inappropriate development. The encroachment of development into the Green Belt also weighs significantly against the proposal. As the harm to the character and appearance of the area could be mitigated to be within acceptable bounds, this consideration does not weigh against the proposal. No harm arises from other factors, including the effect on the living conditions of the occupants of No 3 Olde Stonehealth Court.” The Inspector had previously observed at paragraph 19. “19 In conclusion, I consider that the development causes harm to the character and appearance of the area but subject to additional landscaping being implemented, including more sympathetic and consistent boundary treatments, the harm would be within acceptable bounds. I note that the previous Inspector concluded that the development before him caused very serious harm. However, he was considering a more intensive development with less scope for landscaping. In my view the current proposal causes significantly less harm.” And at paragraph 9:
“9 …. However, the current scheme still has a significant adverse effect on Green Belt openness.”
The Inspector had previously observed at paragraph 19. And at paragraph 9:

DISCUSSION AND CONCLUSION

[28]It was the defendant’s case that the Inspector made it plain that harm to the Green Belt was so significant that it could only result in dismissal of the appeal, including the application for temporary planning permission; that looking at the letter as a whole the Inspector had had regard to the wider area and that the claimant’s case to the Inspector was based an assertion, not evidence based, of a reasonable expectation of a likelihood of change.[29]In my judgment reading the letter as a whole, as I am required to do, I am satisfied, given the choice of words, in paragraphs 56 & 57 that the Inspector did not take into account the argument that there was a reasonable expectation that alternative sites would become available in the wider area. That is self evident from the words used in paragraph 57 which focuses entirely on the needs in Chorley and the absence of any evidence that the Chorley Borough Council would embark on a new needs assessment.[30]Given the Inspector’s findings at paragraph 34 of the decision letter as to the significant need for sites at regional and county level it must follow that it was reasonable to expect that sites would become available in the wider area even if not in Chorley. To that extent I am satisfied that the Inspector failed to take into account, when considering the question of temporary planning permission, whether planning circumstances would change in the wider area within the period of time for which temporary planning permission was sought.[31]I have to consider whether if the Inspector had taken this into account the outcome might have been different. I remind myself of the principles set out in Bolton MBC v Secretary of State for the Environment [1990] 61 P& CR 343, that is to say was there a real possibility that consideration of the matter would have made a difference to the decision. In my judgment the answer to that question is in the affirmative. There is substantial doubt as to whether the Inspector reached his decision having taken account of all relevant matters. He might have reached the same conclusion but, in the absence of reasons, substantial doubt is raised as to whether the decision was based on all of the relevant grounds, including the question of expectation of availability of sites in the wider area.[32]I am satisfied that as a consequence the claimant has been substantially prejudiced and that it is appropriate for the court to exercise its discretion to quash the Inspector’s decision.[33]The first defendant, as I observed at paragraph 2 of this judgment, conceded the claim on the grounds that the Inspector failed to give adequate reasons for his conclusion that temporary planning permission should not be granted (Ground 2 of the claimant’s grounds). Ground 1 was based on a failure to consider a relevant matter. In my judgment the two grounds essentially cover the same territory. The claimant succeeds on the first ground as the Inspector failed to properly take into account the question as to whether there was a reasonable expectation that the planning circumstances could change in the wider area within the period of time for which planning permission was sought. Similarly the claimant succeeds on the second ground as it is not known from the reasons whether the Inspector took account of the argument in respect of the wider area within the period of time for which planning permission was sought. As such, even recognising that the reasons were addressed to parties who were familiar with the issues and arguments, they were inadequate as it could not be understood what conclusion had been reached on that important controversial issue.[34]For these reasons the statutory appeal succeeds and the decision of the 22 May 2012 is quashed.

Cited in 1 later judgment