McCarthy & Anor v First Secretary of State & Anor

The appellants are Irish travellers. They have caravans at Smithy Fen, Cottenham, in Cambridgeshire. They applied for planning permission on 28 April 2003 for “the siting of two gypsy caravans and a shower block” on the land. The application was refused and an enforcement notice was issued requiring them to cease using the land for residential purposes. They appealed and an inspector found in their favour but that decision was quashed by the High Court on 15 December 2004 when the matter was remitted to the Secretary of State for redetermination. In July 2005 a planning enquiry was held and on 7 December 2005 the Secretary of State published his decision, which refused planning permission, upheld the enforcement notice and gave the appellants 12 months to leave the land. The appellants then went to the Administrative Court seeking to set aside the refusal of planning permission pursuant to section 288 of the Town and Country Planning Act 1990 as amended. That came before HHJ Gilbart QC on 20 December 2006 when he, sitting as a judge of the Administrative Court, dismissed the application and refused permission to appeal.

On 17 February 2007 the appellants filed an appellant’s notice which discloses two grounds of appeal. First, that the judge was wrong to conclude that the Secretary of State had been entitled to take account of the possibility that the grant of planning permission would give rise to unauthorised development of other vacant land on Smithy Fen by other gypsies and travellers and, secondly, that the judge was wrong to find that the failure of the Secretary of State to apply the two-stage proportionality test set out by the Court of Appeal in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139 did not render the refusal of temporary planning permission unlawful. The judge, it is said, was wrong to rely on Lough v First Secretary of State [2004] 1 WLR 2557 to conclude that, provided that in a planning case a decision maker carried out a proper balancing exercise, the test of proportionality was met.

When the matter came before HHJ Gilbart he was concerned with a position where there were a number of caravans sited on a 7.5 hectare site. Helpfully, this morning Mr Willers has shown us a plan and indicated on the plan where those sites were. Some plots had planning consent already and there were two groups of claimants before the learned judge; only one of those groups has appealed to this court. The first group was the Sheridan group of claimants, who occupied plots 1 to 11 at Victoria View, and the second group was Mr and Mrs McCarthy, who occupied plot 12 of Victoria View. By way of background, as I have already indicated, they are gypsies and the point was made, as is so often made in litigation of this sort, that there was inadequate provision for travelling people in England, and in particular in Eastern England.

It was very much part of the applicants’ case before the judge that approval of development in their situation would not constitute a precedent for further development on Smithy Fen and, of course, they advanced arguments of the difficulty of obtaining alternative accommodation and their own personal needs and the needs of their children for education. It was the case for the local authority that the grant of permission would be an undesirable precedent and that was supported by other objectors including, for example, Cottenham Parish Council, which said that any grant would lead to pressure for other grants of the same kind.

The judge in his judgment set out a large part of the decision letter, which dealt in particular with the two arguments to which I have just referred: why this grant would be or not be a dangerous precedent and, dealing with the matter dwelt on by Mr Willers just recently, why it would be inappropriate in this particular case to give temporary planning permission for a period as long as three years. The judge then set out the legal framework and the grounds of challenge, which were substantially the same before him as they are now sought to be advanced in this court. He considered the ground in relation to unauthorised development on perhaps a slightly wider basis than it is put before us by Mr Willers this morning, because Mr Willers was prepared to concede that it would at any rate, in certain circumstances, be a relevant factor.

But obviously, as the judge indicated, one has to approach each case in relation to its own particular facts. At paragraphs 47 to 53 the judge considered the appellants’ article 8 point, the one arising from the case of Samaroo. Samaroo, it should be said, was a case where the applicant was convicted of drugs offences and made subject to a deportation order. He claimed that that would interfere with his family life and Dyson LJ said that when considering proportionality there are usually two stages. First, can the objective be achieved by less interfering means; and, second, if not, does the measure proposed have an excessive and disproportionate effect on the interests of affected persons? Lough was a planning case in which Samaroo was considered and in that case the residents objected to a new development at Bankside, and the Court of Appeal when delivering judgment said first through Pill LJ at paragraph 43 of its judgment:

“It emerges from the authorities: (a) article 8 is concerned to prevent intrusions in a person’s private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered. (b) Respect for the home has an environmental dimension in that the law must offer protection to the environment of the home. (c) Not every loss of amenity involves the breach of article 8(1). The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances but it must be substantial. (d) The contents of article 8(2) throw light on the extent of the right in article 8(1) but infringement of article 8(1) does not necessarily arise upon a loss of an amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by article 8(1) has been accorded. (e) It is also open to the public authority to justify an interference in accordance with article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the article. (f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered. (g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with article 8. (h) The margin of appreciation may be wide when the implementation of planning policies is to be considered.”

Then at paragraph 49 of the judgment Pill LJ said this:

“The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in the Samaroo case, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must, however, be considered in the context of article 8, and a balancing of interests is necessary. The question whether the permission has ‘an excessive or disproportionate effect on the interests of affected persons’ [the words of Dyson LJ at paragraph 20] is, in the present context, no different than the question posed by the inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated at page 1161, paragraph 26 that: ‘It is important to emphasise that the striking of a fair balance lies at the heart of proportionality.’”

In a passage cited to us this morning by Mr Willers, Keene LJ at paragraph 55 said:

“I agree with Pill LJ that the process outlined in the Samaroo case [2001] UKHRR 1150, while appropriate where there is direct interference with article 8 rights by a public body, cannot be applied without adaptation in the situation where the essential conflict is between two or more groups of private interests. In such a situation, a balancing exercise of the kind conducted in the present case by the inspector is sufficient to meet any requirement of proportionality.”

As Mr Willers rightly submitted, the facts of Lough were such that the focus was on a balancing between two or more groups of private interests, but the observations made by the court in that case and, in particular, in the passages from Pill LJ which I have cited are clearly more widely applicable in a planning context and, as it seems to me, are of considerable assistance to any judge in the position that HHJ Gilbart was in, in the present case. Thus he was able to say at paragraph 52 of his judgment:

“It is clear from the passages above in the judgments of Pill LJ and Keene LJ that

a)

One cannot simply read the two-stage test across into the planning context;

b)

Provided that the decision maker carries out a proper balancing exercise the test of proportionality is met.”

It seems to me that in the present case that was an entirely appropriate observation for the judge to make and I can find nothing to indicate that he was in any way misled as to the proper approach to the question of proportionality in this case. Indeed, as Richards LJ said when dealing with this matter on paper:

“The judge was right to reject the contention that a rigid two-stage test of proportionality, as referred to in Samaroo, has to be applied in the context of a planning decision of this kind. The attempt to distinguish Lough is unsustainable: the present case is equally one where a balance has to be struck between the interests of the land owner seeking to develop his land, the interests of neighbouring land owners and the wider interests of the community and the protection of the environment.”

He went on to deal with the European dimension.

That leaves only the question of precedent. It seems to me that the judge was entirely right to take the approach that he did and cannot be regarded as being in any way at fault. As I have already indicated, the case was put on rather a wider basis before him than it has been put before us orally this morning, and even in his skeleton argument Mr Willers said this at paragraph 32:

“In conclusion the Appellants submit that ‘precedent effect’ should only be taken into account as a material consideration in circumstances where there is evidence on which the basic conclusion that the grant of planning permission would result in it being difficult for the local planning authority to resist similar applications in the future.”

In my judgment that is plainly too narrow an approach and the approach adopted by the Secretary of State in the decision letter, which is fully set out in the judgment below, was entirely the right. At paragraph 13.44 the Secretary of State set out his view saying this:

“In my view the concerns about precedent are not merely generalised ones.”

Then he goes on to deal with the detail of Smithy Fen. At paragraph 13.45 he deals with the particular circumstances of this application and at paragraph 13.46 he deals with the consequences of granting planning permission as they could well be. I can see no fault at all in that approach and it seems to me that, in the circumstances, it was the right one.

As I understood the case being presented to HHJ Gilbart, it was to some extent upon the basis -- though this may not have been the focus of Mr Willers’ own argument but that of the co-party -- that the processes of law would be sufficient to take care of any likely illegality. If so, that seems to me to be far too narrow an approach and, here again, I respectfully agree with what Richards LJ said when he said:

“If the grant of planning permission would be likely to encourage unauthorised development with identifiable harmful effects on the environment or highway safety, I see no reason in principle why a decision-maker should be obliged to close his eyes to that problem and treat it as an irrelevant consideration. The weight to be given to it (having regard inter alia to the effectiveness of powers to control unauthorised development) is, as the judge said, a matter for the decision-maker. The actual finding in this case that the grant of permission would be likely to have an adverse precedent effect was based on the specific circumstances of the case, which provided a solid basis for the finding, rather than on any generalised concerns or assumptions; and it does not follow that the decision in this case will have the wide-ranging consequences suggested in the applicants’ skeleton argument.”

That leaves only the question in relation to the temporary grant of planning permission. As to that, the matter was clearly addressed initially by the Secretary of State. In paragraph 13.58 the decision letter read thus:

“Similarly, I do not consider that a temporary 3 years permission, as the appellants request as an alternative, would be appropriate. There is insufficient certainty that the Council would identify sites for the occupants in that time period and a 3 year permission would give the appellants no incentive to seek alternative sites, leading inevitably to further protracted enforcement action in the future.”

As to that, HHJ Gilbart said:

“Like the inspector the Secretary of State has considered the request of the appellants for a temporary planning permission for three years as an alternative to permanent planning permission. He has considered whether the temporary planning permission should be granted in the light of his policies in [there referred to]. The Secretary of State does not consider that temporary planning permission is justified, given that development would cause serious harm to the countryside which could not be mitigated by landscaping, and that there is insufficient certainty that the Council would identify sites for the occupants in that time period.”

In other words, the approach adopted by the Secretary of State was one which was clearly sustainable. In my judgment, therefore, there is no substance in any of the points now sought to be argued and certainly not such substance as would give this appeal any realistic prospects of success.

Accordingly, like the single Lord Justice I would refuse this renewed application.

I agree.