Bryan Rogers v Secretary of State for Levelling Up, Housing and Communities & Anor [2023] EWHC 2528 (Admin)

[2023] EWHC 2528 (Admin)Case No CO/2201/2023 CO/2203/2023

IN THE HIGH COURT OF JUSTICEKING'S BENCH DIVISIONPLANNING COURT

[1]Manchester Civil Justice Centre1 Bridge Street West, Manchester M60 9DJ Date: 13 October 2023[3]Karen Ridge sitting as a Deputy High Court Judge- - - - - - - - - - - - - - - - - - - - - Between: - and -

The application to extend time for service

[4]SECRETARY OF STATE FOR LEVELLING UP, -and- FirstDefendant SOUTH STAFFORDSHIRE DISTRICT COUNCIL[6]Second Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -[7]Mr Michael Rudd (instructed by Tedstone, George and Tedstone Claimant[8]Mr Michael Fry (instructed by Government Legal Department) First Defendant Hearing date: 24 August 2023- - - - - - - - - - - - - - - - - - - - - JUDGMENT[9]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC Deputy High Court

Judge Karen Ridge:

[1]This is an application brought by the Claimant for permission to seek a statutory review under s.288 of the Town and Country Planning Act 1990 (“the 1990Act”). The Claimant’s challenge is to a decision, dated 23 March 2023, madeby the First Defendant’s appointed Inspector to dismiss an appeal against therefusal of the Second Defendant to grant planning permission for developmentof ‘Land off Micklewood Lane, Penkridge, South Staffordshire, ST19 5SD’ (“theLand”).[2]There is a further application by the Claimant to extend the time for service ofthe sealed s.288 claim form. In relation to the same issue, the First Defendantseeks a declaration that the Court does not have jurisdiction to entertain thes.288 challenge due to the failure to serve a sealed claim form within theprescribed period.[3]The Claimant originally sought to bring a second challenge pursuant to s.289 ofthe 1990 Act. That was an appeal against the decision of the Inspector to dismissthe Claimant’s appeal against the enforcement notice issued in respect of theLand. For reasons relating to a procedural error, the Claimant accepts that theCourt no longer has jurisdiction to hear the s.289 appeal. The Claimant failedto serve a copy of the s.289 appeal documents on the Defendants within theprescribed 28-day period and the Court having no power to extend the time forservice. That claim is therefore withdrawn. The application to extend time for service[4]The s.288 application was commenced within the 6-week statutory period which ended on 4 May 2023. The relevant documents were filed with the Court on 18April 2023. Paragraph 4.11 of PD54D provides that:
“The claim form must beserved within the time limited by the relevant enactment for making a claim forplanning statutory review set out in paragraph 1.2.”
The ‘relevant enactment’referred to in paragraph 1.2 is s.288 TCPA 1990. Thus, service of the claim formmust also be effected within the same six-week period for making the claim.

FirstDefendant

[5]The Claimant was unable to serve the sealed papers upon either of theDefendants within the statutory 6-week period due to the Court not issuing thesealed papers until after expiry of that time limit. The Court did notacknowledge receipt of the documents when they were initially sent on the 18April 2023 and on 2 May 2023, the Claimant’s legal representatives chasedmatters by email. Between 10 May 2023 and 14 June 2023, the Claimant’srepresentatives contacted the court on no fewer than 10 occasions enquiringabout the sealed documents. The Court finally issued the s.289 appeal on the15 June 2023 but the sealed s. 288 claim form was not issued until 11 July 2023.The s.289 documents were served on the second Defendant on 11 July 2023 andon the first Defendant on 12 July 2023.[6]The Court has the power to extend the time for service of the claim form underCPR r.3.1(2)(a) if application is made. The test to be applied on an application[17]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC for an extension of time for service of a claim form in the context of a judicialreview challenge has been recently clarified by in R (Good Law Project) vSecretary of State for Health and Social Care [2022] EWCA Civ 355. Carr LJ(as she then was) distinguished service of a claim form from other proceduralsteps, given that service of originating process is the act by which the Defendantis subjected to the jurisdiction of the Court. As such the principles establishedin Denton and Mitchell 1 are not applicable.[7]Carr LJ went on to opine that the rules of the Court apply with equal force topublic interest cases as much as to other types of claims; that there is palpableprejudice to the Defendant of the loss of an accrued limitation defence and thatwhen considering an application for extension it is not appropriate to take anyview on the merits of the claim. Carr LJ concluded that:
“It is important to emphasise (again) that valid service of a claim form is what founds the jurisdiction of the court over the defendant. Parties who fail, without good reason, to take reasonable steps to effect valid service, in circumstances where a relevant limitation period is about to expire, expose themselves to the very real risk of losing the right to bring their claim.”
[8]I agree with Mr Fry that there is no logical basis for adopting a differentapproach to the determination of extension of time for service applications inplanning statutory review claims than in judicial review claims.[9]The sealed claim form should have been served by 4 May 2023. It was in factserved on 12 July 2023, almost 10 weeks late. Mr Fry criticises the Claimantfor use of an incorrect form and for not specifying that it was a claim unders.288 of the Act. The claim was however issued on a Part 8 claim from, and itwas accepted by the Court. Whilst the Claimant did not, in terms, impress uponthe Court the urgency of sealing the claim form, the Claimant’s representativeswere entitled to a reasonable expectation that the form would be sealed in atimely manner and that they would be able to serve the sealed form before 4May 2023.[10]On the 2 May 2023 the Claimant’s representative emailed the Court office tochase matters. The email was marked “high importance”. The deadline of 4May was passed two days later, and the Claimant’s solicitor had still notreceived a sealed form. On the 11 May 2023, in a telephone call, the legalrepresentative was assured that the Court would issue the claim “after lunch”and they were told “not to worry about the date”. A further email was sent on18 May 2023 referring to earlier communications, stating that the papers hadbeen lodged on 18 April and “bearing in mind it is an application for review,there is some urgency”.[11]On the 22 May 2023 the Claimant’s representative made two telephone calls tothe Court office and received an assurance that the matter would be sent to thecourt lawyer that same day to enable the lawyer to check the claim before issue.Further chasing telephone calls were made on 25 May, 30 May, 7 June and 9June. On the 14 June 2023 the claimant’s legal representative sent an email[23]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC requesting an update and saying that they had attempted, without success, totelephone the Court office that week. The s.288 claim form was eventuallyissued and sealed on the 11 July 2023 and served on the 11 and 12 July 2023 onthe first and second defendants respectively.[12]In these circumstances I am entirely satisfied that the failure to serve a sealedclaim form in time was due to matters outside the control of the Claimant andhis representatives. The behaviour of the legal representative in continuing tochase the Court for a sealed claim form was reasonable. The delay did not stemfrom the use of an incorrect form. The representative had marked the emailwith the Claim form of ‘high importance’ and they continued to chase matterswhich spoke of the sense of urgency in obtaining a sealed form. It is difficultnot to have sympathy with the Claimant in such circumstances.[13]Unlike in the Good Law case, the Claimant did not choose to serve an unsealedclaim form on the Defendants. However, that is unsurprising considering theassurances given by the Court that the matter was about to be dealt with.Likewise issue of the application for extension of time came after the expiry ofthe deadline but again, given the focus on obtaining a sealed form and theassurances given, this is unsurprising.[14]Whilst service took place significantly out of time, having regard to all theunusual facts of this case, I conclude that the Claimant took reasonable steps toeffect valid service but due to matters outside his control and for good reason,his representatives were unable to do so.I therefore exercise the Court’sdiscretion in extending the time for service of the sealed claim form up to andincluding the last date on which the sealed claim forms were served upon theDefendants.

The application for permission

[15]By application dated 8 May 2022, the Claimant sought planning permission for “the change of use of the Land to use as a residential caravan site for 4 gypsyfamilies, including the stationing of 6 caravans, laying of hardstanding anderection of a communal amenity building”. The planning application wasrefused by the Second Defendant (as Local Planning Authority) in a decisiondated 26th August 2022. Prior to that refusal the Second Defendant had issuedan enforcement notice against the Land on 14th June 2022, in relation to thesame development.The Claimant appealed against both decisions and theInspector dealt with the appeals in a conjoined manner, dismissing both,following an Informal Hearing held on 24th November 2022.[16]The application for planning permission was refused for five reasons. The firstreason was due to the proposal representing inappropriate development in theGreen Belt, contrary to local and national planning policies. The second reasonwas related to the demonstrable harm which it was alleged would be caused tothe Green Belt by virtue of harm to openness and permanence of Green Belt, aswell as significant encroachment and landscape harm.The remaining threereasons for refusal relate to harm to the character and appearance of the area;lack of mitigation or protection measures for an ancient woodland and[29]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC intentional unauthorised development contrary to advice in the WrittenMinisterial Statement of December 2015.[17]The Inspector considered the appeal against the refusal of planning permissionat paragraphs 40 to 122 of the decision letter. The main issues were identifiedas whether the development would constitute inappropriate development in theGreen Belt; the effect of the proposal on the openness of the Green Belt; theeffect of the proposal on the character and appearance of the site and thesurrounding area; and whether any harm by reason of inappropriateness andother harm would be clearly outweighed by other considerations such as toamount to the very special circumstances necessary to justify a grant of planningpermission.[18]The Inspector went on to make key findings in relation to each of those issues.It was concluded that the proposed use did constitute inappropriate developmentin Green Belt terms and that it would have a significantly harmful effect uponthe openness of the Green Belt. She went on to conclude that the proposal wouldhave a significantly harmful effect on the character and appearance of the landand the surrounding area.[19]After going on to consider various other factors, the Inspector set out othermaterial considerations which weighed in favour of the grant of permission.These included the general need for gypsy and traveller accommodation and thelack of a 5-year housing land supply; the lack of alternative accommodation forthe applicant and his family; the personal circumstances of the appellant and hisfamily including the best interests of the children.[20]At paragraph 101 of the decision letter the Inspector undertakes the requiredbalancing exercise in relation the Green Belt. After summarising her previousfindings, she concludes:[106]The Framework establishes that substantial weight shouldbe given to any harm to the Green Belt and that inappropriatedevelopment, such as the appeal scheme, is by definition harmful to theGreen Belt and should not be approved except in very specialcircumstances. Policy E of the PPTS states that, subject to the bestinterests of the child, unmet need and personal circumstances, are unlikelyto clearly outweigh harm to the Green Belt and any other harm.[107]The Framework makes it clear that the potential harm to the GreenBelt by reason of inappropriateness and any other harm resulting from thedevelopment must be clearly outweighed by other considerations forplanning permission to be granted. In this case I find that although thereare some matters which weigh in favour of the appellant, the cumulativeweight of these other considerations does not clearly outweigh thesubstantial harm arising to the Green Belt in combination with the harmto the character and appearance of the surrounding area and the IUD.[108]Consequently, my initial conclusion is that the very specialcircumstances that are necessary to justify inappropriate development inthe Green Belt do not exist in this case. Accordingly, the development is[34]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC contrary to Core Policy 2 and Policies GB1, H6, EQ4, EQ11 and EQ12of the Local Plan and to the Framework.[21]The Inspector then goes on to consider whether a grant of temporary and/or 109 The appellant is clear that he is seeking planning permission on a permanent basis, however it is necessary for me to consider whether agrant of temporary and/or personal permission is justified.[110]The substantial weight attached to any harm to the Green Belt is thesame for a temporary as for a permanent permission. In this case the effecton openness and the harm to the character and appearance of thesurrounding area would be moderated if the permission was of a limitedduration. 111. The Council requested that if planning permission wasgranted it should be subject to a condition limiting the duration of consentuntil 31 March 2025. At the Hearing it confirmed that this timescalereflects the programme for its expected adoption of the DPD.[112]There is no certainty that the DPD will be delivered in accordancewith the Council’s ambitions and even if it were in place by that time thereis no information before me regarding the likelihood that there will be anavailable site for the appellants in that timescale. On that basis it cannotbe said that there is a reasonable expectation of a change in planningcircumstances within a two-year period and throughout that period andpotentially beyond the harm which I have identified would endure.[22]The Inspector concluded that granting permission on a temporary basis or on apersonal basis did not change the Green Belt balance such that planningpermission should be granted on either of these bases.The Claimant seekspermission to challenge the decision to dismiss the appeal on two grounds,namely that the Inspector erred in her approach to the issue of a temporaryplanning permission and secondly, that the Inspector erred in relation toconsideration of the best interests of the children.[23]Lindblom J. (as he then was), in Bloor Homes East Midlands Ltd. v. Secretaryof State for Communities and Local Government and another [2014] EWHC754 (Admin) set out several legal principles relevant to s.288 challenges, whichincluded recognition that: (3) The weight to be attached to any material consideration and all mattersof planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining anapplication for planning permission is free, “provided that it does not lapseinto Wednesbury irrationality” to give material considerations “whateverweight [it] thinks fit or no weight at all”… And, essentially for that reason,an application under section 288 of the 1990 Act does not afford anopportunity for a review of the planning merits of an inspector’s decision…[24]In Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017]EWCA Civ 893, Lindblom LJ sets out the legal principles applicable on[39]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC considering an application for permission. There must be vigilance againstexcessive legalism when reading planning decisions of inspectors and suchdecisions should be read in a straightforward manner, with an appreciation thatplanning decision-making mostly involves the exercise of planning judgementwith a correct understanding of policy and lawful application of that policy tothe particular facts of a case.

Ground 1

[25]The claimant contends that the Inspector has erred in her approach to the issue of temporary planning permission in two respects. Firstly, the claimant takesissue with the Inspector’s statement at paragraph 110 that “The substantialweight attached to any harm to the Green Belt is the same for a temporary as fora permanent permission”.Following that sentence the Inspector goes on toacknowledge that the effect on the openness and the harm to the character andappearance of the surrounding area would be moderated if the permission wasof a limited duration.[26]It is for the Inspector, as part of their planning judgment, to attribute the weightto be given to any particular factor in the balancing exercise. Attribution ofweight and assessment of these factors can only be challenged if the conclusionsarrived at are irrational or perverse. It is well-established that the reasons for adecision must be intelligible and adequate as per Lord Brown in South BucksDistrict Council v Porter (No.2) [2004] 1 WLR 1953.[27]The issue of the nature of the planning balance and the weight to be attributedto various factors was considered in the case of Moore v SSCLG and LondonBorough of Bromley [2013] EWCA Civ. 1194 when the Court of Appealconsidered the lawfulness of the planning balance carried out by an Inspectorwhen assessing temporary planning permission for development in the GreenBelt. The Court of Appeal accepted the earlier observations of Cox J. when shestated:
“ 70 However, the substantial weight previously attaching tothe harm arising from inappropriate development in the Green Belt fellto be reduced, because it would be limited in time...”
[28]The decision as to the grant of a temporary planning permission is a matter ofplanning judgment. Mr Fry contends that the case of Moore is distinguishablebecause the Inspector in the Moore case had applied the same balancing exerciseto both temporary and permanent planning permission.However, as thejudgment of Cox J. makes clear, where substantial weight had been attributedto the harm arising from inappropriate development when considering apermanent permission; when one came to consider a temporary planningpermission it was only right that the weight attributed should be reduced due tothe harm existing over a shorter period.[29]Here, the Inspector has started her assessment with a statement that thesubstantial weight to be attributed to any harm in the Green Belt is the same fora temporary as for a permanent permission. She goes on to acknowledge thatthe effecton openness and harm to character and appearance of the surrounding[45]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC area would be moderated if the permission was of a limited duration.TheInspector is acknowledging the harm would be moderated but there is noreference to any corresponding reduction in weight.[30]Even if Mr Fry is correct, that the first sentence sets out the starting premise andthe second sentence has the effect of adjusting the weight to harm, that reductionwould appear to only apply to the harm by way of openness (and harm tolandscape character and appearance). The decision is silent as to any reductionto the harm by way of inappropriate development.[31]Mr Fry points out that the National Planning Policy Framework makes nodistinction between temporary and permanent permission.The Frameworksimply states that substantial weight should be given to any harm to the GreenBelt. However, if the weight to various factors remained unchanged in relationto both a balancing exercise for a permanent planning permission and one for atemporary planning permission, what would be the point in conducting thesecond balancing exercise to consider a temporary planning permission?[32]The second complaint against the Inspector’s decision is in relation toconsideration of the duration of the temporary permission. The Inspector wenton to consider the duration of any temporary planning permission. At paragraph111 she records the Council’s request for a temporary period up to 31 March2025, on the basis that this reflected the Council’s timetable for expectedadoption of its DPD. At 112 of the decision letter, the Inspector sets out herreasons for concluding that it could not be said that there was a reasonableexpectation of a change in circumstances within the suggested period.[33]The Inspector was entitled to come to that conclusion in the exercise of herplanning judgment but, having rejected the Council’s suggestion of 2 yearsbeing a period in which circumstances might change, she did not go on toconsider a longer period (allowing for slippage of the DPD adoption timetable)and coming to a view on the acceptability of a longer period.[34]For these reasons I consider that ground 1 is plainly arguable as to whether theInspector has taken a lawful approach to the consideration of the grant of atemporary planning permission and having rejected the Council’s suggestion ofa 2-year period, failing to provide reasons as to why a longer period would notbe appropriate.

Ground 2

[35]The second ground rests upon the Claimant’s contention that the Inspector erredin her approach to the best interests of the children.The Supreme Court inZH(Tanzania) v SSHD [2011]UKSC 4, as confirmed in Zoumbas v SSHD[2013] 1 WLR 3690 at [10], emphasised that the best interests of children are aprimary consideration in cases such as this, that is where their interests are beingadversely impacted upon, and no other factor should be given more weight.[36]In Dear v SSCLG [2015] EWHC 29 (Admin) it was accepted on behalf of theSSCLG [44] that the correct starting point in Green Belt cases is to attachsubstantial weight to the best interests of the child, according with the[53]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC substantial weight to be attached to the harm to the Green Belt. It is then amatter for the decision maker whether that weight may be reduced, (see Dear at[47] and Stevens v SSCLG [2013] EWHC 792 (Admin) at [63]) but if it is to bereduced, adequate and intelligible reasons must be given.[37]The Inspector deals with the question of personal circumstances of the appellantand his family at paragraphs 93-98.She acknowledged that the personalcircumstances of the Claimant and his family...”including the best interests ofthe children, weigh significantly in favour of the development”.[38]The Inspector, in a separate paragraph, says the following: 104.The best interests of the children are a primary consideration, and no other consideration is inherently more important,however, they are not a determinative factor. In this case the bestinterests of the children who reside on the site weigh significantly infavour of allowing the appeal.[39]Finally, at paragraph 117 the Inspector, in a section entitled “Human Rightsincluding the Best Interests of the Children” goes on to address theconsequences of dismissal of the appeal and the significant interference withtheir Article 8 rights.[40]At paragraph 91 of the Decision Letter the Inspector accepts that there was no acceptable sites available to him as an alternative to the appeal site. Hehas submitted letters from gypsy and travellers' sites in the area whichstate that there are no vacant pitches available. His only option if he andhis family were not able to stay on the site, would be to occupy anunauthorised, roadside site. The Council does not dispute the informationprovided by the appellant and is not aware of any sites which may providealternative accommodation.”[41]The Inspector acknowledges at paragraph 118 that there is a lack of alternativeaccommodation for the family; that the children would benefit from a settledbase in terms of accessing education and other support. She recognises that theprospect of a roadside existence would have significant implications for familylife and could lead to separation of the wider family members. Whilst she usedthe term ‘the potential of a roadside existence’, I am satisfied that she wasreferring to a situation in which the appeal failed.[42]On reading the decision letter as a whole, the Inspector gave clear and detailedconsideration to the best interests of the children, identifying them as a primaryconsideration and recording that no other considerations are inherently moreimportant. The Inspector expressly grappled with the issue, identifying that itwas in the best interests of the children to have a settled base. Her starting pointwas that the best interests of the children were a significant factor. She went toapply her planning judgment and concluded that the personal circumstances ofthe family, the best interests of the children and other factors in support did not[60]High Court approved Judgment:Rodgers v SSLUHC and South Staffordshire DC clearly outweigh the harm she had identified. For these reasons ground 2 is notarguable.[43]I therefore grant permission on ground 1 and refuse permission on ground 2.

Cited in 1 later judgment