Eastwood, R (on the application of) v The Royal Borough of Windsor & Maidenhead [2013] EWHC 3476 (Admin)

Case No CO/4289/2013[2013] EWHC 3476 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/11/2013
Before
MR JUSTICE MOSTYN
Between
The Queen on the application ofClaimantMrs Jane EastwoodClaimantThe Royal Borough of Windsor & MaidenheadDefendant
Mr Stephen Cottle (instructed by Lester Morrill incorporating Davies Gore Lomax) for ClaimantMr David Lintott (instructed by Shared Legal Solutions) for DefendantHearing Hearing dates: 7 November 2013
Judgment
[1]This is my judgment on renewed applications for permission to seek judicial review. It relates to two linked cases where permission was refused on the papers respectively by Mr Justice Lewis on 24 July 2013 and by Mr Timothy Dutton QC on 13 August 2013.[2]On 19 December 2009 a group of Romany Travellers entered with their caravans and other possessions into a 4½ acre field at Five Oaks Farm, Shurlock Road, Waltham St Lawrence, Reading, Berkshire. I believe that 10 (or possibly 11) caravans were put in the field. It was a sizeable group which took occupation of the site and they included amongst their number around 20 children.[3]The Travellers did not enter as trespassers; they had the consent of the owner, who may, or may not, have been one of their number. However their entry and occupation of the field was unlawful in the sense that the land was within the green belt and designated for agricultural use alone. The Travellers can have had no doubts that their use of the field for residential accommodation was contrary to the planning laws and would inevitably result in measures to remove them. Therefore, from the very moment that they took occupation they must have been well aware that their residence at the site was precarious.[4]On 22 December 2009 Nicol J granted an injunction preventing the introduction of any more caravans than were already there; from undertaking any other construction or development work included erecting fences and laying pipes; and from the introduction of any further hard core, road scalpings or similar materials onto the site.[5]On 24 December 2009 the local authority issued an enforcement notice pursuant to the provisions of the Town and Country Planning Act 1990. That required everything to be removed and the field to be returned to grassland within two months. An appeal was mounted by the owner of the land, Mr Mark Picket. By virtue of section 177(5) of the Act he was deemed to have made an application for planning consent for the development to which the notice related, mainly for change of use of the land to use as a residential caravan site, including access improvements, hard standing and the erection of 10 amenity blocks. That application for planning consent was refused on 25 February 2010.[6]The appeal procedure involved an inquiry by an inspector in the usual way and this was heard over eight days in November 2010 and January 2011. On 17 March 2011 inspector issued his report. It is a lengthy, comprehensive and indeed exhaustive document running to 49 pages. Clearly the appellants faced an uphill struggle because the stated government policy was then, and is now, that "inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development".[7]In seeking to establish special circumstances the appellant relied on the article 8 ECHR right of the Travellers living on the site to respect for their family life. Emphasis was placed on the fact that some occupants had poor health and that four children were enrolled in primary school (see paragraph 231). It was further emphasised that were the community to be evicted it would have nowhere to go and that the 51 existing pitches provided by the local authority were fully used. The local authority accepted that there was then a current unmet need for new sites; the requirement in the Borough was for a further 15 pitches.[8]The inspector very carefully weighed the competing arguments and in his reasoning gave full and proper consideration to the human rights arguments as well as to the interests of the children concerned. He correctly reminded himself that the Strasbourg court has held that when considering whether taking action to require a person to leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. He concluded that the appeal against the enforcement notice and the refusal to grant full planning consent should be dismissed but that the time for compliance with the enforcement notice should be extended to 18 months (from the date that the appeal was formally dismissed which in the events which occurred meant that the compliance period ended on 11 February 2013). In reaching the conclusion that the moratorium should instead be for 18 months the inspector said at paragraph 258 – 259:
“I find that a period of 18 months would be more reasonable as this would enable alternative accommodation and site provision arrangements to be progressed. The council indicated that the development plan documents, which will result in the identification of sites, will be reaching fruition by 2013, and the extended period of compliance will provide a period of settlement, and provide an opportunity for the occupants to be fully involved in this process. It would also avoid the adverse consequences of short-term displacement, which have weight because of the personal circumstances of the occupiers, particularly the continuing education at the children and access to health care.”
[9]In accordance with the usual procedure the inspector’s report went to the Secretary of State for him to decide whether to adopt it or not. He decided to adopt it by a decision given on 11 August 2011. In reaching its decision the Secretary of State attached "substantial weight" to the unmet need for Gypsy and Traveller accommodation and the accommodation needs of the occupants, and the current lack of alternative sites. He attributed some weight to the personal circumstances of the site occupiers, and to their health needs. He attributed significant weight to the benefit of access to education for the children should permission be granted. Nonetheless he dismissed the appeal, but no doubt all of these factors contributed to his concurrence with the decision that 18 more months should be granted to the community while the local authority attempted to establish further pitches where they might be accommodated. It is idle to speculate what the decision might have been if everyone had known that at the end of the moratorium period in February 2013 not one further single pitch would had been made available by the local authority. Maybe the inspector would have granted full or temporary planning permission; maybe he would have granted a much longer moratorium period. Or maybe not. It is an unhelpful counter-factual exercise. What is relevant for my purposes is that the decision of the inspector and the Secretary of State was clearly premised on an expectation that these further pitches would in all likelihood have come available by the time that the moratorium ran out.[10]As I have mentioned on 11 February 2013 the moratorium came to an end. Three days later on 14 February 2013 the local authority, by a decision of its cabinet prioritisation subcommittee, resolved that enforcement action pursuant to section 178 of the Act should be taken. This allows the local authority, where any steps required by an enforcement notice have not been taken within the compliance period, to enter the land and take those steps, and to recover the expenses incurred in so doing. There is no appeal from a decision to take action under this section. The date set for the eviction was fixed for 15 April 2013. On 2 April 2013 the local authority appointed contractors to take the necessary steps. And on 10 April 2013 the subcommittee confirmed and reiterated its previous decision. In the minutes of that last meeting it was recorded that "the inspector's decision in 2010 was discussed (sic) that an 18 month extension be granted in light of the council's expectation of the availability of deliverable sites by 2013".[11]The meeting went on to record that notwithstanding efforts not one single further pitch had been provided by the local authority during the moratorium period. There was a short list of about 20 sites but in respect of these every owner bar one objected to development of those sites for Travellers. The meeting concluded that "at this stage the list had not be (sic) analysed to see if any of the proposed lands would be suitable for Traveller sites and it was considered not to be proportionate to defer a decision". I must confess to struggling with the logic of this reasoning. It seems to me to contain a non sequitur.[12]On 11 April 2013 the claimants (being two representative members of the community) applied for permission to seek judicial review and for interim relief. On that day an order was made preventing their removal pending the determination of the application. On 13 August 2013 Mr Dutton QC refused permission in a fully reasoned written decision having had the benefit not only of the very ample grounds in support and defence but also of skeleton arguments from each side.[13]The grounds in support of the application are 14 in number and range far and wide. I agree with Mr Dutton QC’s treatment of them save in one respect, as I explain below.[14]Particular emphasis is placed by Mr Cottle for the claimants on the alleged failure of the local authority to promote and safeguard the interests of the children of the community. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 ([2011] 1 FCR 221, [2011] 2 AC 166, [2011] 2 WLR 148 the Supreme Court considered the scope of this obligation in the context of an immigration case. At para 23 Lady Hale stated: “For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the UNCRC: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.” "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."[15]The specified public bodies include a local authority exercising planning functions.[16]At para 25 Lady Hale referred to and adopted the UNHCR explication of Art 3(1) in its Guidelines on Determining the Best Interests of the Child (May 2008) viz:
"The term 'best interests' broadly describes the well-being of a child. . . . The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: • the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9); • the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3)." • the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9); • the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3)."
[17]And at para 26 she stated:
“This [does] not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first.”
[18]The minutes of the meeting of 10 April 2013 at page (iv) show that the meeting was fully aware of this decision by the Supreme Court. It carefully considered the interests of the children and it is plain that it did not relegate those to insignificance nor treat any other consideration as inherently more significant. In my opinion the complaint in this regard is quite untenable.[19]By contrast, I believe that the complaint that the meeting reached a decision to evict without fully and properly considering that the underlying premise of the grant of the moratorium had been frustrated has merit. The question is, however, whether this decision is susceptible to judicial review. It cannot be disputed that a decision by a local authority to take measures under section 178 is in principle amenable to judicial review; the question is whether this one is.[20]In trying to answer this question it is worth reminding myself of the basic principles. In R v Hillingdon LBC, ex p. Puhlhofer [1986] UKHL 1, [1986] AC 484, a housing case, Lord Brightman stated at page 518: My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg, v. Secretary of State for the Environment ex parte Nottinghamshire County Council [1986] 2 WLR 1 at 5. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.[21]A distinction surely must be drawn between those decisions which involve an abuse of power and those decisions which are said to be wrong. Where a decision is tainted in the sense that it has been procured by, for example, illegality (i.e. it being outside the lawful powers of the decision maker), or corruption (such as the taking of a bribe), or bias (actual or apparent) then obviously judicial review is available. Those are plain examples of abuse of power. If however, the decision is said to be unreasonable in the Wednesbury sense then it must be so wrong that it can properly be characterised as absurd, or irrational or perverse. Some decisions can be so characterised if it can be said that they have been the product of prejudice – in Wednesbury itself (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1[1947] 2 All ER 680, [1948] 1 KB 223) Lord Greene MR instanced the famous example given by Lord Justice Warrington in Short v. Poole Corporation [1926] Ch 66 of a schoolteacher being dismissed because she had red hair. In that case, however, the decision not to allow the inhabitants of Wednesbury to go to the pictures on a Sunday did not cross the line. Lord Green MR spoke of “something so absurd that no sensible person could ever dream that it lay within the powers of the authority” and of a decision being “so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”[22]What the administrative court when exercising its powers or judicial review must not do is to set itself up as an alternative primary decision maker or as a court of appeal determining whether or not a decision is wrong or even plainly wrong (see Re B(a Child) [2013] UKSC 33 for analysis of the difference, if any, between a wrong discretionary decision and a plainly wrong one).[23]It is only where the decision crosses the boundary between wrongness on the one hand and perversity or absurdity on the other that it is amenable to judicial review.[24]I do not have to decide this question substantively; all I have to decide is whether the point is arguable. With some misgivings I have decided that the decision by the meeting to disregard the fundamental premise of the decisions of the Inspector and the Secretary of State is arguably perverse, and I therefore give permission on the sole ground that "the decision of the local authority made on 14 February 2013 and confirmed on 10 April 2013 was perverse in that it failed to give any meaningful weight to the failure of the local authority to provide alternative pitches in circumstances where both the Inspector and the Secretary of State in 2011 had expected that it would."[25]I do not want my disposition to raise the hopes of the claimants unduly. To cross the threshold of perversity will be a stiff climb indeed. The ingrained policy objective of preventing traveller encampments in the green belt will loom large at the substantive hearing.[26]I now turn to the second case. Here the claimant (who is one of the claimants in the first case) made an application for planning permission for her caravan alone in November 2012. On 12 February 2013 the local authority declined to determine the application relying on section 70A of the 1990 Act. This allows the local authority, where the Secretary of State has dismissed an appeal against the refusal of a similar application, to decline to determine the new application if it thinks there has been no significant change in the relevant considerations since the earlier refusal. Guidance given by the government in August 2004 merely states that local planning authorities should decide what constitutes a “significant change” in each case.[27]It is noteworthy that Parliament granted this power to a local authority when it merely "thinks" that there has not been a similar change rather than where it is so "satisfied". The previous incarnation of the statutory provision provided that the power would be exercisable where the local authority was "of the opinion" that there had not been a significant change, which is semantically indistinguishable from the present formulation. An alternative synonym would be where the local authority "believes" that there has not been a significant change. The second noteworthy feature is that the change in question must have been significant; obviously with the effluxion of time changes inevitably occur but it will only be where a change is significant that the local authority is prevented from exercising this power.[28]To my mind a challenge to a thought or belief, whilst being theoretically possible, will in the generality of cases be almost impossible to achieve. In this case the principal change relied on is that the application relates only to one caravan whereas the previous one related to all of them. If that were a valid ground then I can foresee that the power in question here, which is obviously necessary and reasonable, would become emasculated.[29]In my judgment the arguments put forward by Mr Cottle do not come close to demonstrating that the thought opinion or belief of the local authority that this was a similar case to the earlier one and that there had not been any significant change was perverse. On the contrary, if I were the decision maker (and I am not) I would have reached exactly the same conclusion on the facts.[30]The application for permission in the second case is dismissed.[31]The stay on implementing the eviction measures will stay in place until the hearing of the substantive hearing of the single ground on which I have granted permission in the first case. I invite counsel to agree case management directions concerning any further evidence (I doubt that any will be needed); the filing of position statements; and time estimate.

Later

[32]By a supplemental submission produced after this judgment was distributed in draft Mr Cottle in effect seeks a second bite of the cherry. He asks me to reconsider my agreement with Mr Dutton QC that the decision to evict (assuming it was properly and reasonably reached) was not arguably disproportionate. I do not think there was any ambiguity in my decision in this regard and nothing now advanced by Mr Cottle leads me to change my mind.