Rooney v Secretary of State for Communitites and Local Government

This is the hearing of an adjourned application for permission to appeal, with the appeal to follow if permission is granted, against the order dated 26 October 2010 of HHJ Michael Kay QC, sitting as a Deputy Judge of the High Court, dismissing the applicant's application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), to quash a decision of an inspector appointed by the first defendant, the Secretary of State for Communities and Local Government, to dismiss the applicant's appeal under section 78 of the Act against the decision of the second defendant to refuse planning permission for a change of use on land at Willow Farm, Ottershaw in Surrey ("Willow Farm") for the stationing of caravans for four gypsy families, together with ancillary hardstanding.

The inspector held a public inquiry into the appeal on 27 October 2009 and carried out a site visit on 29 October. His decision letter is dated 30 October 2009.

A little over a month earlier, the same inspector had allowed an appeal under section 78 against the refusal of the second defendant to grant planning permission for the change of use of land to the rear of Red Cottage, Lyne Road, Lyne, Virginia Water, Surrey ("Red Cottage") as a residential caravan site for six gypsy families, each with two caravans together with ancillary hardstanding.

The inquiry into the Red Cottage appeal was held on 2 September 2009 and following a site visit on 3 September the inspector's decision letter granting planning permission, subject to a number of conditions, is dated 9 October 2009.

Unsurprisingly, Mr Masters, who appeared on behalf of the appellants at both of the inquiries, placed much reliance before the inspector in the Willow Farm appeal upon his recent grant of planning permission in the Red Cottage appeal. In effect, it was contended that the circumstances of the two appeals were not distinguishable in any material respect and the same considerations which had led the inspector to grant planning permission in the Red Cottage appeal should lead him to grant planning permission in the Willow Farm appeal. The inspector dealt with that contention in paragraph 53 of the Willow Farm decision letter:

As a matter of first impression, it might be thought that the issue as to whether there was any material difference between the circumstances of the two appeals was preeminently a matter of planning judgment for the inspector who had seen both sites on his site inspections. Where is the error of law in the inspector's approach to the Willow Farm appeal?

In both cases there were enforcement notices prohibiting the use of the land for the siting of caravans for residential use. The planning applications were an attempt to regularise the use of the sites as gypsy caravan sites. Both appeals, therefore, proceeded upon the basis that if planning permission was not to be granted, then eviction would follow. Both sites were in the Green Belt and there was no dispute that their use as gypsy caravan sites was inappropriate development in the Green Belt. The inspector, therefore, had to consider in both appeals whether the harm by reason of inappropriateness in the Green Belt and any other harm was clearly outweighed by other material considerations.

In the Red Cottage decision the Inspector said:

The inspector then considered in paragraph 40 of the decision letter whether very special circumstances existed so as to justify an appropriate development in the Green Belt and concluded that they did.

In the Willow Farm decision letter, the inspector posed the same questions, but his answers to those questions were different. When dealing with whether harm by reason of inappropriateness and any other harm was outweighed by other considerations, the inspector said:

In paragraph 51, the inspector considered whether very special circumstances existed and concluded that they did not:

I have already set out paragraph 53 of the decision letter in the Willow Farm appeal in which the inspector distinguished between the two appeals.

In his original grounds of appeal and in his supplemental skeleton argument dated 14 November 2011 on behalf of the claimant, Mr Masters submitted that the inspector's conclusion that the interference with the appellant's Article 8 rights in the Red Cottage case would not be proportionate should have led him to reach the same finding in the Willow Farm case. In both appeals the appellant's gypsy status was agreed. There was a significant need for additional gypsy and traveller sites, there were no suitable sites in the area and no suitable sites were likely to become available until the Development Plan Documents ("DPD") had been adopted and acted upon, which would take some five years. It followed that eviction would result in the appellants in both cases having to resort to roadside camping in all probability.

The submission underlying this appeal that the conclusion as to proportionality in both cases should have been the same is based in my judgment upon a fundamental misconception, that is to say that in deciding whether the interference with the appellant's Article 8 rights was proportionate, the inspector was simply concerned with the possible impact of a refusal of planning permission upon the appellants, and was not entitled to consider the extent of planning harm which would result from a grant of planning permission. As the inspector said in paragraph 50 of the Willow Farm decision letter: the interference with the appellant's Article 8 rights had to be weighed against the wider public interest. That is the position in any balancing exercise that has to be carried out under Article 8(2). In simple terms, the greater the harm to the public interest, the less likely it is that the interference with the individual's Article 8 rights will be found to be disproportionate.

In the present case, the inspector explained why the very similar degree of interference that was disproportionate in the Red Cottage case was not disproportionate in the Willow Farm case. In the latter case, the inspector had concluded that granting planning permission would be severely harmful to the Green Belt and to both the character and the appearance of the area: see paragraphs 46, 50 and 53 of the Willow Farm decision letter. This can be contrasted with the inspector's conclusions as to the extent of the harm to the Green Belt if planning permission was to be granted in the Red Cottage case: see paragraph 35 of that decision letter.

In summary, while there were of course some differences between the appellants’ personal circumstances in the two cases, the main difference was between "a considerable level of harm" in the Red Cottage case and "very severe harm" in the Willow Farm case. In the latter case, the proportionality balancing exercise under Article 8(2) understandably came down in favour of refusing planning permission. It seems to me that there was, therefore, no arguable error of law in the inspector's approach. That would be a sufficient basis for disposing of this application for permission to appeal. However, on the renewed application for permission to appeal before Carnwath LJ, Mr Masters raised a further ground of appeal and it was that ground which persuaded Carnwath LJ to adjourn this application for permission to appeal because of the wider implications of the new point that Mr Masters had raised.

By way of background, it is quite clear that HHJ Kay QC did not consider the issue of proportionality afresh for himself. He adopted the conventional approach in applications under section 288 and appeals under section 289 of the 1990 Act; that is to say he considered whether there was an error of law in the inspector's approach to proportionality.

Mr Master's new submission was that the judge had erred in restricting himself to a review of the lawfulness of the inspector's decision on proportionality. The judge should, submitted Mr Masters, have carried out a merits review of that issue for himself. For this somewhat surprising proposition, Mr Masters relied principally upon the dicta of Lord Neuberger in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104. In paragraph 45 of his judgment, Lord Neuberger, omitting case citations, said:

Mr Masters's core submission this morning was that in a situation where fundamental human rights are engaged, such as Article 8, the conventional approach under sections 288 and 289 is wrong and the court has to adopt a review based on what Mr Masters described as "Pinnock principles". With due respect to Mr Masters's submission, this is wholly misconceived because it fails to take into account the differences between the two statutory schemes: the one under the Housing Act 1985 as amended by the Housing Act 1996 and the other under the 1990 Act. In Pinnock the Supreme Court was concerned with a local authority's power to obtain an order for possession against a demoted tenant. Section 143D(2) of the 1996 Act provided that:

The question was whether section 143D(2) could be read and given effect compatibly with the Article 8 rights of demoted tenants. The Supreme Court concluded that it could, so that in appropriate circumstances the demoted tenant could raise an Article 8 argument before the County Court considering whether or not to make a possession order. It is important to note that the application to the County Court would be the only occasion on which the proportionality of the order sought by the local authority against the demoted tenant could be considered by an independent court or tribunal.

The position under the 1990 Act is quite different. There is a right of appeal under section 78 against the local planning authority's decision to refuse planning permission which will result in the eviction. On such an appeal the Secretary of State or more usually an inspector appointed by him will conduct a full merits appeal on all of the issues, including, if relevant, the issue of proportionality under Article 8. That was precisely what the inspector did in these two appeals. He decided the issue of proportionality for himself, having regard to all relevant considerations including, most importantly, the wider public interest.

In these circumstances, there is simply no need for a second merits review of the proportionality issue. In any event, the High Court, which will not have seen the site and will not have heard detailed evidence, would not be in a position to conduct such a review. Mr Masters submitted that in cases where the Secretary of State recovered jurisdiction, neither the Secretary of State nor his officials would see the site either. However, those cases represent a very small fraction of the appeals that are determined under section 78 and in such cases the Secretary of State, unlike the court, will have the considerable expertise of the department in planning matters at his or her disposal.

In these circumstances where an inspector has considered the merits of an appeal, the requirements of the European Convention on Human Rights are satisfied by a statutory scheme which provides for a challenge to the lawfulness of the inspector's decision on essentially judicial review grounds. Mr Masters submitted that the European Court of Human Rights had determined in Bryan v United Kingdom [1995] 21 EHRR 342 that planning inspectors were not independent. Thus he submitted an appeal before an inspector did not afford someone, who might be evicted from their home, the opportunity of having the proportionality of that interference with their Article 8 rights determined by an independent court or tribunal. However, this was precisely the issue that was considered in both the Bryan case and in the case of R (Alconbury Developments Ltd & Others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295.

In Alconbury the House of Lords referred with approval to the judgment of the European Court of Human Rights in Bryan. In the latter case, the European Court of Human Rights had concluded that, notwithstanding the lack of independence of the inspectorate, the fact that there was an appeal to the High Court on essentially judicial review grounds was sufficient to secure compliance with the Convention. That is, indeed, a reflection of the point made in paragraph 45(c) of Lord Neuberger's summary of the position where he said:

In Alconbury Lord Slynn, having reviewed the relevant authorities including a number of decisions of the European Court of Human Rights, said this in paragraph 54:

By contrast, the appeal in the present case is an entirely conventional section 78 appeal, where the appeal is from a decision of a local planning authority. The inspector takes the decision for him or herself and in theory while there is of course a possibility, as noted in Bryan, of recovery by the Secretary of State, in practical terms there can be no doubt that the inspector is entirely independent of the local planning authority, as indeed is demonstrated by the outcome of the Red Cottage decision.

In paragraph 122 of his judgment in Alconbury, Lord Hoffmann, having reviewed the relevant authorities, said this:

Mr Masters sought to draw a difference between what he described as "expediency issues" which would include matters of policy and what he described as "fundamental issues of proportionality under Article 8". However, that distinction fails to acknowledge the underlying proposition, that is to say that any consideration of proportionality is a balancing exercise, balancing the public interest against the degree of interference with the individual's Article 8 rights. Any assessment of the public interest is bound, in the planning context, to involve consideration of such matters as the degree of planning harm, the extent of conflict with planning policy and so on and so forth. That is to say, precisely the kind of “policy or expediency” questions referred to by Lord Hoffmann. In respect of such issues there has been complete unanimity in the European Court of Human Rights that the present system of having such matters determined by planning inspectors with a right of review on judicial review grounds to the High Court is convention compliant. That, indeed, was the conclusion of the European Court of Human Rights in the Bryan case.

Having noted the extent to which the High Court could review an inspector's decision on the planning merits and noted that it was essentially limited to judicial review grounds, the European Court of Human Rights said this in the final paragraph in paragraph 47 of its judgment:

In my judgment, those observations are equally apposite to the appeal in the present case. The short answer to Mr Masters's submission is that any perceived lack of independence in the inspectorate is remedied by a right of appeal on judicial review grounds to the High Court, which could of course examine any allegation that the inspector had acted in anything other than an entirely fair and impartial manner. Once that position is established, the answer to Mr Masters's submission based upon Pinnock is that while the Convention does require the issue of proportionality to be determined by an independent tribunal where Article 8 is engaged, it most certainly does not require that the state should give the individual two bites at the cherry.

By way of analogy, in the immigration field the issue of proportionality is considered by the First-Tier Tribunal from which there is an appeal on a point of law to the Upper Tribunal. The position is the same under the 1990 Act with the substitution of the planning inspector for the First-Tier Tribunal and the High Court for the Upper Tribunal.

For these reasons, I am satisfied that there is no substance whatsoever in this ground of challenge to the judge's approach to this section 288 appeal. I would grant permission to appeal given the importance of the issue raised, but I would do so only in order to dismiss the appeal.

I agree.

I entirely agree and cannot usefully add anything.