Smith & Anor v The First Secretary of State & Anor

J U D G M E N T

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a judgment of Sullivan J given in the Administrative Court on 29 October 2004, when he dismissed the applicant's appeal brought under section 288 of the Town and Country Planning Act 1990. By that appeal the applicant had sought an order to quash the decision of an inspector appointed by the Secretary of State, set out in a decision letter of 23 July 2004, by which the inspector had refused planning permission for development consisting of caravans for gypsies and access arrangements at Woodside Caravan Park in Bedfordshire.

2. Permission to appeal was refused by Sullivan J on application being made to him immediately after he delivered judgment, and further refused by myself on consideration of the papers on 11 February 2005.

3. Ms Easty has appeared for the applicant today to pursue his renewed application for leave to appeal before my Lord, Sedley LJ, and myself. It has transpired that my Lord and I are not of one mind as to whether permission should be granted. In those circumstances, we have thought that the most expeditious course is to adjourn the permission application to a court of three, with the appeal to follow if permission is granted. In those circumstances, I for my part propose to say very little beyond this: I consider that the learned judge below was right for the reasons that he gave. I will just put a little flesh on the bones of that. The applicant is a Romany Gypsy who lives with his extended family in three caravans on a particular plot on the site in question. At length, when the matter came before Sullivan J a number of grounds of challenge to the inspector's decision were canvassed. Sullivan J rejected them all. Four of them are renewed upon this application. They are grounds originally numbered 1, 4, 5, and 6. On each of these matters, as I have already said, I consider that the judge was right for the reasons he gave. At various points in his judgment he cites the material paragraphs of the decision letter. Where the inspector's reasoning is effectively relied on by the learned judge as being correct, I agree with the learned judge that it was. It does not seem to me that there is any great utility in my saying any more since the reasons for my view of the matter are those set out by the judge below.

4. LORD JUSTICE SEDLEY: As my Lord has indicated, the views that each of us has come to are arrived at upon the papers and without the benefit so far of oral argument. My first impression on the papers has been to this effect that of the four grounds now relied on and tabulated in paragraph 8 of the grounds in the appellant's notice, at least two -- that lettered (c) and that lettered (d) -- are arguable as involving points of law.

5. Ground (c) is that the first respondent's planning inspector erred in law in that he took account of the suggestion that the site was too close to other authorised sites in the district, "risking undue competition for local work and potential conflicts between gypsy communities". It seems to me at the moment arguable as a matter of law that this is not a legally relevant consideration and that it verges upon social engineering.

6. The second of the two that I have mentioned, ground (d), is that the inspector erred in law in concluding that there was a "trend" or "shift" of caravans from authorised sites to unauthorised sites. The ground is amplified in the notice. This too seems to me potentially to raise an issue of law, namely whether planning policy can properly have as a goal the containment of gypsies on local authority sites, these being effectively the only authorised sites so far as I am aware.

7. I also have in mind that it will often be of no avail to show that one or two grounds were bad if the rest of the decision makes the same outcome inexorable. This, however, was on any view a strong planning application: the numbers of caravans involved was modest; the policy of permitting such private sites was well established; screening by trees appeared to answer the landscape problem; previous inspectors had given clear indications that an application such as this ought to succeed - and yet every element was answered in the negative. It does seem to me that, standing back and looking at the decision as a whole, there is a case there too.

8. These are my preliminary views. They may turn out to be wrong, but they are why my Lord and I feel that the course proposed by us and accepted by Ms Easty is the right one.

Order: permission application adjourned to a court of three, with the appeal to follow if permission is granted. Time estimate of half a day.