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

In this appeal we must consider whether the appellant, the Secretary of State for Communities and Local Government, gave adequate reasons for disagreeing with his inspector’s recommendation to allow an appeal against a refusal of planning permission for the continued use of land for the siting of caravans.

The Secretary of State appeals against the order of Gilbart J., dated 19 August 2015, by which he allowed the application of the first respondent, Mr Thomas Allen, under section 288 of the Town and Country Planning Act 1990, challenging the decision of the Secretary of State, in a decision letter dated 1 October 2014, dismissing his appeal against the refusal by the second respondent, Bedford Borough Council, to grant planning permission for the development of land at “Waiting for the Sun Farm”, Rushden Road, Bletsoe in Bedfordshire, without complying with conditions 1 and 2 on a planning permission granted by the council on 24 June 2009. The 2009 permission was a temporary planning permission for the change of use of the site to use as a caravan site, with four pitches, the erection of two amenity blocks, hardstandings and landscaping. Two conditions on the permission limited it to a period of three years ending on 23 June 2012.

Mr Allen is a Romany gypsy. He and his wife have occupied a caravan on the appeal site since 2003, at first off and on, but since 2008 as their home, latterly with their three young children. Other pitches on the site are occupied by other Romany gypsies and travellers.

Mr Allen’s appeal against the council’s decision was recovered by the Secretary of State on 7 August 2013 – “because of the high level of objections at both application and appeal stages, the site’s planning history and the attendant controversy surrounding the appeal” (paragraph 2 of the decision letter). The inspector, Mr John Felgate, held an inquiry into the appeal, which opened on 29 May 2013 and sat on 11 subsequent days in September and November 2013 and January and February 2014, closing on 21 February 2014. In his report, dated 23 April 2014, he recommended that the appeal be allowed and that a further temporary planning permission be granted, for a period of two years. For the reasons he gave in his decision letter, the Secretary of State disagreed with that recommendation, dismissed the appeal and refused planning permission.

Gilbart J. upheld Mr Allen’s challenge on a single ground, which was that the Secretary of State had “failed to give adequate reasons for his decision”. That conclusion of the judge goes to the Secretary of State’s reasons for disagreeing with the inspector on the potential suitability of an alternative site, at Meadow Lane on the A603 road between Bedford and Cambridge (paragraph 37 of the judgment). Permission to appeal was granted by the judge.

There are two grounds of appeal, which give rise to two related issues: first, whether the judge was wrong to conclude that the Secretary of State failed to give adequate reasons for his decision; and secondly, whether the judge was wrong not to decide the question of substantial prejudice to the interests of Mr Allen.

In a respondent’s notice filed on behalf of Mr Allen it is contended that the Secretary of State’s decision ought also to have been quashed because he took a wrong approach to the suitability of alternative sites – in particular, the Meadow Lane site – and reached a “perverse and [Wednesbury] unreasonable” conclusion on that matter; and because the Secretary of State failed properly to take into account the best interests of the children on the appeal site.

The inspector identified (in paragraph 189 of his report) five “main issues” in the appeal. One of these, the fourth, was “whether the continued use of the appeal site is necessary to meet a general need for traveller sites in the locality, either because of problems with the Council’s proposed site at Meadow Lane, or for any other reason”.

The Meadow Lane site was owned by the council. At the time of the inquiry into Mr Allen’s appeal it was vacant. Planning permission had been granted in March 2012 for 14 permanent gypsy and traveller pitches and related facilities (paragraph 52 of the inspector’s report). The implementation of that development was provided for in a deed of variation to a section 106 planning obligation, made between the council and Bellway Homes Ltd. – who were redeveloping the former RAF site at Cardington – and other parties. The deed of variation, executed on 20 December 2013, required Bellway Homes to carry out the necessary works to provide a permanent gypsy and traveller site on the site, including the laying out of 14 pitches, and to complete those works by 28 February 2015. Those works were “in lieu of part of the previously agreed social housing” (paragraph 53).

Because the Meadow Lane development had planning permission and the arrangements agreed with Bellway Homes required it to be delivered by the end of February 2015, the council’s case was that there was a supply of sites to meet the identified need for gypsy and traveller sites for the relevant five-year period, and beyond (paragraph 84). The council recognized “[the] possible problems at the [Meadow Lane] site with regard to noise, surface water drainage and flooding”, but contended that the development had been “carefully designed to overcome these issues”. Evidence had been put before the inquiry in support of that contention. In the light of this evidence the council argued that the Meadow Lane site would “offer a satisfactory living environment for future residents” (paragraph 85). It said that it had “a good record in providing for gypsies and travellers”, that the site at Kempston Hardwick was “well managed and popular”, and that it “would aim to achieve a similar high standard at [Meadow Lane]” (paragraph 87).

On behalf of Mr Allen it was submitted at the inquiry that the Meadow Lane site was unsuitable for residential occupation, for several reasons: in particular, odour from Bedford’s main sewage works and a commercial abattoir and lairage on adjacent land, noise from traffic on the A421 road, inadequate surface water drainage, the need for arrangements to be made with the Highways Agency for the carrying out of the necessary off-site drainage works and the erection of the acoustic fencing, the danger to children from traffic on the A421, and the presence of New Zealand Pygmyweed on the site (paragraphs 138 to 147 of the inspector’s report).

The Meadow Lane site was, said the inspector, “a very challenging site on which to create an acceptable residential environment” (paragraph 248). He agreed with Mr Allen that it was “not an inviting location for residential occupation” (paragraph 249). He referred to “a number of problems” facing the council in developing the site, including noise from the A421, odour, standing water on large parts of the site, and the presence of New Zealand Pygmyweed. Although mitigation measures were proposed for some of these problems, he said, the evidence raised “significant doubts as to the quality of the residential environment that can be achieved” (paragraph 250). Even with the proposed acoustic barrier in place, there seemed to be “little doubt that the noise environment on the [Meadow Lane] site will not be ideal” (paragraph 251). It seemed likely that once the improvements to the sewage works were completed, the “odour levels from that source reaching the proposed new pitches will be within acceptable levels”. But in the absence of any evidence to the contrary, there appeared to be “an obvious risk that the residents of the [Meadow Lane] site will sometimes be subjected to unpleasant smells from the abattoir”. The evidence before the inquiry, said the inspector, “does not fully dispel that perception” (paragraph 252). He saw “no reason to doubt” that the proposed adjustments to site levels “will be successful in protecting the new pitches and access roads from flooding, and in accommodating the necessary volume of compensatory storage”. But it seemed “probable that, after development, the seasonal flooding will spread further, to cover much of the undeveloped residue of the site, between the new pitches and the A421 and the [emergency stopping place]”. Fencing off “such a potentially large area of the site”, he said, “seems likely to mean that the traveller site will be hemmed in by fencing, increasing its isolation and resulting in a somewhat oppressive sense of enclosure” (paragraph 253). As for the presence of New Zealand Pygmyweed on the site, the “method statement” provided by the council “does appear to show that measures can be taken to clear the weed from the area to be developed (paragraph 254).

The inspector then drew all these conclusions together, in this way:

The Secretary of State agreed with most of the inspector’s conclusions. But he disagreed with him on the prospects of the Meadow Lane site providing suitable accommodation for gypsies and travellers.

Two passages in the decision letter contain the Secretary of State’s reasons for his own conclusions about the Meadow Lane site. They are in paragraphs 25, 26 and 35. Paragraphs 25 and 26 are in the part of the decision letter in which the Secretary of State dealt with the fourth main issue, under the heading “… General needs for traveller sites in the area”:

In the passage of the inspector’s report referred to at the end of paragraph 26 of the decision letter – paragraphs 92 to 100 of the report – the inspector summarized the council’s submissions on the Meadow Lane site in this way:

Gilbart J. found the Secretary of State’s reasons unsatisfactory. He saw the “central issue” as being “whether or not [the Secretary of State] has grappled with the findings of fact and conclusions of the Inspector about the contribution of Meadow Lane to the supply of pitches” (paragraph 28 of his judgment). The Secretary of State “had he wished to do so, was entirely entitled to say that, having considered all that the Inspector had found and concluded about conditions on [the Meadow Lane site], nonetheless he thought that the site was suitable” for occupation by gypsies and travellers. But he had not identified “any finding of fact, or any planning judgement made by the Inspector on the environmental issues at Meadow Lane, or its suitability as a place to live, with which he disagrees”, concluding instead that “they would be overcome by the Council by February 2015” (paragraph 31). The effect of the inspector’s findings of fact must be that, in his planning judgment, the issues relating to noise, odours and drainage “had not been adequately addressed” (paragraph 32). It was not clear what the Secretary of State had in mind when he relied on the council accepting its “responsibilities” to provide acceptable living conditions (paragraph 33). Gilbart J. went on to say (in the same paragraph):

I do not share the judge’s misgivings about the Secretary of State’s reasoning. In my view the reasons the Secretary of State gave for dismissing the appeal, including his reasons relating to the Meadow Lane site, are “proper, adequate and intelligible”. They express and explain his conclusions on the “principal important controversial issues”. They make clear to Mr Allen, and to the other participants in the appeal, why the appeal was lost and the application for planning permission refused. That is what they had to do (see the familiar passage in the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No.2) [2004] 1 W.L.R. 1953, at paragraph 36).

Where the Secretary of State disagrees with an inspector, as he did in this case, it will of course be necessary for him to explain why he disagrees, and to do so in sufficiently clear terms. He must explain why he rejects the inspector’s view. He must do so fully, and clearly. But there is no heightened standard for “proper, adequate and intelligible” reasons in such a case. Whether the reasons given are “proper, adequate and intelligible” will always depend on the circumstances of the case, and in a case where the Secretary of State differs from his inspector this will depend on the particular circumstances in which he does so (see, for example, the decision of this court in Horada and others v Secretary of State for Communities and Local Government[2016] EWCA Civ 169, in particular the judgment of Lord Thomas of Cwmgiedd C.J., at paragraphs 57 to 59, and the judgment of Lewison L.J. at paragraphs 34 to 40). It is a truism that the Secretary of State does not have to give reasons for his reasons. What he has to do is to make sure that his decision letter shows why the outcome of the appeal was as it was, bearing in mind that the parties to the appeal know well what the issues were. In this case he did that.

The “principal important controversial issue” to which the disputed reasons relate was whether the appeal site was required to meet the general need for traveller sites in the area either “because of problems with the [council’s] proposed site at Meadow Lane” or for any other reason – the inspector’s fourth main issue. The inspector concluded, in effect, that the appeal site might be required to meet that need, the Secretary of State that it was not. The Secretary of State’s relevant conclusions were founded on six considerations – which are apparent in paragraphs 25, 26 and 35 of his decision letter, read together with the corresponding parts of the inspector’s report.

First, planning permission had been granted for the Meadow Lane development, subject to conditions and a section 106 planning obligation, requiring the development to be completed and ready for occupation by February 2015.

Secondly, as the Secretary of State recognized, it was not his task to decide whether or not the Meadow Lane development was acceptable in planning terms. That had already been done by the council, as local planning authority. It had been the council’s task when determining the application for planning permission to consider the issues relating to noise, odour and drainage, as well as any other land use planning matters. Indeed, the inspector had recognized this, in paragraph 255 of his report, where he said that it was not for him to judge whether the decision to grant permission for the Meadow Lane development was correct.

Thirdly, it was the council’s responsibility, under the planning permission, its conditions and the section 106 obligation, to ensure that living conditions on the site would be acceptable for its occupiers. As the council had stressed at the inquiry, in the submissions summarized by the inspector in paragraphs 92 to 100 of his report, it was committed to providing “acceptable living conditions”. And there was no reason to think it would not meet its “commitments” in that respect. The reference to the council’s “responsibilities” in paragraphs 26 and 35 of the decision letter can only be a reference to the requirements under the conditions imposed on the planning permission for the Meadow Lane development and the covenants in the deed of variation of the section 106 obligation – both of which were before the inspector and the Secretary of State as inquiry documents, and were provided to us after the hearing.

Fourthly, the Meadow Lane development would provide 14 new pitches – enough to meet the district’s requirement for a five-year supply of deliverable sites.

Fifthly, contrary to the inspector’s view, it was possible to conclude now that after February 2015 the Meadow Lane development would meet the district’s remaining need for additional pitches.

And sixthly, it was very unlikely that until then Mr Allen and his family would have to resort to roadside living, because they could either be accommodated on Mr Allen’s father’s site at Irthlingborough or on a pitch at the travellers’ site in Kemptson Hardwick.

That analysis seems to me to be clear enough in the Secretary of State’s decision letter. It does not lack a proper foundation in the evidence and submissions before him, as reported to him by the inspector. Nor can it be said to have led him to an irrational conclusion – different though it was from the inspector’s.

As Mr Whale submitted, the Secretary of State’s conclusion in paragraph 35 of the decision letter as to what would happen before the end of February 2015 did not depend on the suitability of the Meadow Lane site for gypsy and traveller accommodation. It rested on the Secretary of State’s findings, in the light of the inspector’s report, and in agreement with him, that Mr Allen and his family were unlikely to have to resort to roadside living, and that suitable alternative accommodation would be available to them. In considering what would happen after February 2015, the Secretary of State had to make what was essentially a predictive planning judgment. The inspector made such a judgment of his own, in paragraph 257 of his report. It was, as Mr Whale said, a less than definite judgment. The inspector did not find that the Meadow Lane site was, or would prove to be, unsuitable for occupation by gypsies and travellers. Rather, he was not convinced that living conditions there would be acceptable, and thought it would only be possible to judge whether or not this was so after the development was complete. But the Secretary of State was in no such doubt. As he made plain in paragraph 35 of his decision letter, he had concluded, “[unlike] the inspector”, that it was possible to make an assessment now “that the Meadow Lane development will provide a satisfactory answer to the area’s unmet need for pitches from February 2015”. He was clearly of the view that it was possible for him, as decision-maker, to conclude at this stage that the Meadow Lane site was suitable for occupation by gypsies and travellers, that the development on that site would provide acceptable accommodation, and that it would meet the remaining need for pitches once it was in place. As Gilbart J. rightly observed (in paragraph 33 of his judgment), this was the kind of planning judgment about which no complaint could properly be made in proceedings under section 288 of the 1990 Act.

The policy context in which the Secretary of State made that planning judgment was the principle, expressed in footnote 7 to paragraph 9(a) of the PPTS, that sites with an extant planning permission should be considered “deliverable” save where there is “clear evidence” that development would not come forward within five years. That qualification did not apply to the Meadow Lane site. Under the policy the site could properly be regarded as deliverable within five years, and development on it viable. It had planning permission, was going to be available for occupation by the end of February 2015, and would, in the Secretary of State’s view, provide suitable accommodation for gypsies and travellers. Under the policy, therefore, it was properly to be regarded as “deliverable”.

I do not think the Secretary of State failed to confront the inspector’s findings of fact and conclusions on the Meadow Lane site. He noted those relevant findings of fact and conclusions in paragraph 26 of his decision letter. The inspector was doubtful as to the suitability of the Meadow Lane site. But the Secretary of State clearly was not. His conclusions in paragraphs 26 and 35 of the decision letter explain why. Hecould rightly have been criticized if he had gone behind the council’s decision to grant planning permission for the Meadow Lane development. That was not the proposal before him on appeal. He did not have to assess its planning merits. What he had to do was to judge, if he could, whether or not that development would satisfy the need for additional pitches after February 2015. He did that, and concluded firmly that it would. He accepted, as he was perfectly entitled to do, that the council, when granting planning permission for the Meadow Lane development and when entering into the deed of variation of the section 106 planning obligation, had gone about its task as local planning authority responsibly. He also plainly accepted, again as he was perfectly entitled to do, that the council as landowner would ensure that living conditions for occupiers of that site would be acceptable. He did not lack a proper basis for that conclusion. He referred to and relied upon the relevant part of the council’s case at the inquiry, summarized in paragraphs 92 to 100 of the inspector’s report. Those paragraphs were effectively incorporated by reference into the decision letter. They did not have to be repeated.

So this is not, in my view, a case of the Secretary of State falling short in his duty to make clear the basis for his own planning judgment on the issues he had to decide. He did so explicitly – albeit not by rehearsing the evidence and submissions he accepted. I do not think his reasons are less than adequate or less than intelligible. They explain sufficiently and clearly why his conclusion on the issue of need was not the same as the inspector’s.

On this, its principal ground, I think the appeal must therefore succeed.

Gilbart J. said it had not been argued before him – “rightly” – that if the Secretary of State had grappled adequately with the suitability of the Meadow Lane site for occupation by gypsies and travellers as a “principal issue”, this “would have made no difference to the decision” (paragraph 37 of his judgment). And he concluded that “the interests of [Mr Allen] have been substantially prejudiced by the failure of [the Secretary of State] to comply with the relevant requirements” (in paragraph 40). Had I agreed with Gilbart J.’s conclusions on the adequacy of the Secretary of State’s reasons, I too would have concluded that the decision would have to be quashed. The prejudice to Mr Allen would then lie in the Secretary of State’s failure to explain why a temporary planning permission for two years should not be granted. But the Secretary of State did not fail to do that, and the question of substantial prejudice does not therefore arise.

On the respondent’s notice, Mr Masters argued that the Secretary of State not merely failed to provide adequate reasons for his conclusions on the Meadow Lane site and development, but also that he could not reasonably find the Meadow Lane site suitable for occupation by gypsies and travellers – contrary, said Mr Masters, to the inspector’s conclusion in paragraphs 248 to 257 of his report. He also submitted that the Secretary of State’s decision cannot be reconciled with the approach to the suitability of alternative accommodation for gypsies and travellers, in the context of article 8 of the Human Rights Convention, indicated by the European Court of Human Rights in Chapman v United Kingdom(2001) 33 E.H.R.R. 18 (in particular at paragraphs 103 and 104 of its judgment), and followed by the domestic courts – for example, in Doncaster Metropolitan Borough Council v Angela Smith[2007] EWHC 1034 (Admin). This was a case in which the best interests of the child needed to be recognized and properly dealt with (see the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department[2011] UKSC 4, in particular the judgments of Baroness Hale and Lord Kerr). Mr Masters submitted that this was not done. He relied on the judgment of Hickinbottom J. in Stevens v Secretary of State for Communities and Local Government[2013] EWHC 792 (Admin), in particular two of the propositions in paragraph 69 of that judgment, subsequently endorsed by the Court of Appeal in Collins v Secretary of State Communities and Local Government [2013] EWCA Civ 1193: that “[where] the article 8 rights are those of children, they must be seen in the context of article 3 of [the United Nations Convention on the Rights of the Child], which requires the child’s best interests to be a primary consideration”, and that “[this] requires the decision-maker, first, to identify what the child’s best interests are”. Mr Masters submitted that the inspector had carried out a proper assessment in accordance with those principles, but the Secretary of State had not. The Secretary of State had done no more than to pay “lip service” to the best interests of the children on the appeal site. In so far as he had exercised his own judgment, he had done so perversely, and without properly assessing the best interests of the children involved.

I cannot accept those submissions.

Mr Masters’ general complaint about the Secretary of State’s planning analysis is in my view misconceived. Read as a whole, the Secretary of State’s conclusions seem to me to be unassailable. He did not decide against granting a temporary planning permission simply because planning permission had been granted for the development at Meadow Lane. He also had regard, in paragraph 35 of his decision letter, to the availability of alternative sites before the Meadow Lane development was completed in February 2015. He concluded that in the meantime it was very unlikely that Mr Allen and his family would have to resort to roadside living, given that suitable accommodation would be available for them elsewhere. After February 2015, in his view, the Meadow Lane site would provide suitable accommodation for gypsies and travellers. He was entitled to rely on the council’s evidence and submissions to that effect, as he clearly did. The mistaken premise in Mr Masters’ argument is that the inspector positively found that the Meadow Lane development would not provide suitable accommodation for gypsies and travellers. The inspector did not reach that conclusion. And the Secretary of State was satisfied that the accommodation at Meadow Lane would be suitable. The submission that his conclusions were perverse – or illogical or unfair – is, in my view, untenable. They were entirely reasonable and lawful as an exercise of planning judgment.

As for Mr Masters’ human rights argument, I agree with the simple and cogent conclusion of Gilbart J. (in paragraph 38 of his judgment):

On Mr and Mrs Allen’s “personal circumstances” – within his main issue (v) (in particular, at paragraphs 258 to 264 and 292 to 297) – the inspector agreed with the council that there “seems no reason why the family could not now be re-accommodated at Irthlingborough, as and when a pitch becomes available”. Otherwise, he saw “no reason to doubt” that the council “would try to find a pitch at [Kempston Hardwick], and would give the Allens some priority there because of their children …”. This, he accepted, was not what Mr Allen would prefer, but on his visit to Kempston Hardwick, he said, he “saw nothing to suggest that it is not a suitable site on which to bring up a family”. He went on to say that “[one] way or another, it seems very unlikely that the family would have to resort to living on the roadside”, but “remembering that children are involved, even a small risk in this respect is to be avoided if possible” (paragraph 262). He set out his conclusions on “Human Rights and equality considerations” (in paragraphs 292 to 297 of his report). Those conclusions were informed by his earlier conclusions on the need he saw “for a proper assessment of the quality of the new accommodation at [Meadow Lane], and for the [Allen] family to make an informed choice between that site [and] the other options which may be available to them” (paragraph 295). He concluded (in the same paragraph) that “[granting] temporary permission would therefore allow the children’s best interests to be accommodated”.

The Secretary of State’s conclusions on the article 8 considerations, including the best interests of the children, appear in three paragraphs of his decision letter: paragraph 28, under the heading “… Personal circumstances”, and paragraphs 34 and 37, under the heading “Overall Conclusions”:

In the light of those conclusions, read together with the paragraphs of the inspector’s report identified in them and the other related passages of the decision letter to which I have referred, I cannot see how it can properly be argued that the Secretary of State failed to deal appropriately withthe article 8 rights of Mr Allen, his wife, and the family members affected by the outcome of the appeal, and, specifically, the best interests of the children involved. This was not mere “lip service”. It was a well focused and thorough assessment of all relevant considerations arising under article 8, including those bearing upon the best interests of the children. It does not offend any of the relevant principles recognized in domestic authority, including the first instance judgment in Stevens and the decision of the Court of Appeal in Collins, or the jurisprudence of the European Court of Human Rights, including the decision in Chapman. Mr Masters’ submissions did not identify any particular consideration that the Secretary of State ought to have taken into account but did not in carrying out that assessment. The Secretary of State adopted the correct approach.His assessment was clear and complete. And its outcome was, in my view, perfectly sound.This was the conclusion reached by Gilbart J.. He was, I think, plainly right.

In my view, therefore, the arguments put forward in the respondent’s notice must be rejected.

For the reasons I have given, I would allow this appeal.

I agree.

I also agree.