Lee v Secretary of State for Communities and Local Government & Anor

This appeal raises a short point on a narrow issue of planning law.

It arises out of the refusal of planning permission, and the subsequent issue of an enforcement notice, in respect of the use of land in the Green Belt for a mobile home by the family of the Appellant, who is a Romani Gypsy.

The Appellant applied for planning permission for the change of use of land known as ‘Land at Warren Yard, Lyne Lane, Lyne, Chertsey, Surrey’ (‘the Land’ or ‘the appeal site’). The application was for:

The retention and siting of one residential mobile home to be used to accommodate one Gypsy family together with one touring caravan, one timber shed and the existing hardstanding and gravel driveway and existing access to Lyne Lane.

The application was refused by the 2nd Respondent (‘the Council’), which issued an enforcement notice (‘the EN’) with a 9 month specified period for compliance.

The Appellant appealed against both the refusal of planning permission and the issue of the EN. The appeals were conjoined and a Planning Inspector was appointed. The appeals were recovered for determination by the 1st Respondent (‘the Secretary of State’), and consequently the Inspector did not determine the appeals. Instead he issued a report dated 20 October 2013 (‘IR’), in which he recommended to the Secretary of State that the EN be quashed and that a 3 year temporary planning permission should be granted.

On 18 February 2014, the Secretary of State issued a Decision Letter (‘the DL’) disagreeing with the Inspector’s conclusions. He decided that the Appellant’s appeal against the Council’s refusal of planning permission would be dismissed, but that the time for compliance with the EN be extended from 9 to 18 months.

The Appellant challenged these decisions under sections 288 and 289 of the Town and Country Planning Act 1990 (‘the TCPA 1990’); and the challenges (with others raising similar issues) came before Lewis J sitting in the Planning Court.

On 11 July 2014 Lewis J gave judgment. He rejected the Appellant’s application under s.288 of the TCPA 1990 and, having granted permission, dismissed the appeal under s.289.

The Appellant appeals from this decision.

At IR§13, the Inspector identified the main issue:

As it is not in dispute that the appeal development amounts to inappropriate development of the Green Belt, I consider the main issue is whether there are any material considerations sufficient to clearly outweigh the harm to the Green Belt (GB) and any other harm, including to character and appearance, thereby justifying the proposal on the basis of very special circumstances.

The Inspector then set out his findings under a number of headings: ‘openness, character and appearance’, ‘other considerations: pitch need, provision and alternatives’, and ‘other considerations: personal circumstances and Human Rights’, before coming to ‘the overall balancing exercise’. In relation to this overall balancing exercise the Inspector concluded (at IR§38):

Taking all these other considerations together, I find that very special circumstances exist to clearly outweigh the harm to the GB.

The material finding, so far as the present appeal is concerned, is contained at IR§33, under the heading ‘personal circumstances and Human Rights’.

It is likely, therefore, that if the current appeals were to fail the occupants would move onto another unauthorised site, in all likelihood in the GB, with all the attendant problems this would bring, including to the overall detriment of [the Appellant’s daughter’s] health if she could no longer be seen by her current doctor and the children’s continuing education if they had to move school. This would amount to interference with the family’s rights under Article 8 of the Human Rights Act 1998. (Emphasis added).

In the DL, the Secretary of State substantially agreed with the Inspector’s findings. At DL§11 he considered the point raised in IR§33 as to the likelihood of the Appellant’s family moving to another unauthorised site if the appeals were dismissed.

The Secretary of State also agrees with the Inspector (IR33-34) that, should the appeals be dismissed, the likelihood is that the appellant’s family would move to another unauthorised site to the detriment of the daughter’s health and of the children’s education should they need to move schools.

However, when it came to the overall balancing exercise, he concluded at DL§13:

The Secretary of State has therefore gone on to carefully consider the balance of the needs of the proposed occupiers against the need to protect the GB … He considers that, even when combined with the personal circumstances of the proposed occupants and the needs of the children, the very special circumstances necessary to justify the development do not arise.

The ground of appeal is a complaint that Lewis J did not properly address or grapple with the Appellant’s argument that,

the [Secretary of State] had failed to take account of the fact that his inspector had concluded that if the Appellant’s family were refused temporary planning permission then they would be likely to camp on unauthorised sites within the GB - with the result that similar (and perhaps) greater harm to that arising from their residential use of the appeal site would be caused to the GB.

An initial point was raised by the Secretary of State as to whether it was open to the Appellant to raise this argument, since it had not figured in either the written grounds or the skeleton arguments before the Judge. Mr Willers QC accepted this was so, but submitted that the point had been raised in the course of arguments. The Court was taken to Ms Moodie’s notes of the submissions which had been made before the Judge, and I am satisfied that the point was raised and argued.

Mr Willers’s argument before this Court, was that the Inspector had concluded that, if the appeals were dismissed, the site occupants would be likely to move to another unauthorised site in the Green Belt, and that this was bound to cause as much harm to the environment as the continued use of the appeal site. He submitted that as a matter of logic, if there were a move to any unauthorised site in the Green Belt, it would be bound to cause the same or greater harm as the continued occupation of the appeal site.

He relied on the decision of this court in Moore v. Secretary of State for Communities and Local Government [2013] EWCA Civ 1194, and in particular the judgment of Richards LJ.

23.

I would attach particular importance, as did Mr George QC in his submissions on behalf of the claimant, to the judge’s criticism of the inspector’s failure to make any finding as to whether it was more likely than not that the claimant and her children would have to resort to roadside camping if temporary permission were refused. I agree with the judge that a finding on this issue went to the heart of the balancing exercise required and that it was not sufficient simply to treat it as ‘possible’ or as ‘no certainty’.

24.

If the family was likely to face a roadside existence in the event of refusal of temporary permission, it would involve a far more serious interference with their article 8 rights, especially through the impact on health and education, than if they were likely to obtain alternative accommodation. Thus the issue went to the core of the article 8 analysis. Moreover, the ‘other material considerations’ advanced by the claimant included ‘the likely outcome of refusing planning permission including human rights considerations’ (para 17 of the inspector’s decision), which underlined the need for a finding on likelihood.

25.

The question whether the family was likely to resort to a roadside existence was also important in relation to the ‘harm’ side of the balance. On the inspector’s own finding, at para 31 of his decision, roadside camping would be likely to be equally harmful to the Green Belt and potentially more harmful to the countryside. Of course, the grant of temporary permission would still result in the harm identified by the inspector, and it may not be strictly accurate to describe that harm as being cancelled out or neutralised by the harm that would result from the refusal of temporary permission, but the overall balance would necessarily be affected if the harm resulting from the refusal of temporary permission would be equal to or greater than the harm resulting from the grant of such permission. The judge did not deal with the point in quite this way but it goes to support the conclusion she reached.

Mr Willers drew attention, in particular to the observations about importance of weighing in the ‘harm side of the balance’ the likelihood, if the appeals failed, that the occupants of land would move to another unauthorised site in the Green Belt, and argued that there had been a similar failure in the present case. The DL had not assessed the environmental harm that would result from the likely removal of the Appellant’s family to another Green Belt site; and the Judge had failed to address this issue in his judgment.

While the observations of Richards LJ in Moore at [25] have a resonance with the facts of the present case, in my view the case does not throw significant light on the issue in the present case. As Richards LJ made clear, at [1] of his judgment, the issue in that appeal was ‘fact specific rather than of wider importance.’ In Moore there was a failure of the Inspector to make any relevant finding about the likelihood that the claimant and her children would have to resort to roadside camping if temporary permission was refused, see [23].

As already noted, in the present case the DL accepted the findings in IR§33 as to the likelihood of the Appellant’s family moving to another unauthorised site if the appeals were dismissed.

The question then is whether it was necessary for the DL specifically to refer, as the IR had, to the likelihood that the unauthorised site would be ‘in the Green Belt’. In my view the answer is very plainly, no. In its effect Mr Willers’s submission has the impractical, as well as the legally flawed, effect that the DL was bound to replicate every word of the IR. Furthermore, in practice, as emerged during the course of argument, it would have been plain to those reading the DL, and who had knowledge of the underlying facts, that the unauthorised site would necessarily have been in the Green Belt.

In the light of this conclusion it is unnecessary to deal with the further points made by Mr Whale in further support of the Judge’s conclusion. However, it is right that I should deal with Mr Willers’s criticism of the way in which the Judge dealt with the point which he had raised in the course of oral submissions. He did so in [172] when dealing with the facts, and in [175] when dealing with his analysis.

172.

Against that, there is the impact on Mrs Lee and her family. There is the impact on their traditional way of life. There is the impact on the children which is a primary consideration. There is the impact on Mrs Lee's daughter. There is the fact that there is unlikely to be an alternative, suitable Gypsy site available for them. In assessing proportionality, therefore, I bear in mind that the effect on the family of refusing temporary planning permission will be that they are likely to have to move to another unauthorised site. In all the circumstances, of this case, however, the decision not to grant planning permission purses a legitimate, and highly important aim, and is proportionate to that aim. The decision in relation to Mrs Lee and her family is, in my judgment, compatible with Article 8 ECHR.

…

175.

For completeness, I note that I have carefully considered all the points made by Mr Willers in the grounds of claim, his skeleton argument, and in oral submission. I have considered carefully all the material, and case law, drawn to my attention. That includes … the decision of the High Court and the Court of Appeal in Moore v Secretary of State for Communities and Local Government [2013] EWCA Civ 1194 on which great reliance was placed. That decision turns on the facts of that case, as Richards L.J. notes in paragraph 1 of his judgment where he says that the issues in that appeal were fact-specific rather than of wider importance. The Defendant did not make the error in Mrs Lee's case … that the courts identified in Moore.

In my view the Judge dealt with the point sufficiently, and the further investigation of the argument on this appeal has not shown that he erred in his conclusion.

For these reasons, I would dismiss the appeal.

I agree.

I also agree.