Basildon District Council, R (on the application of) v First Secretary of State & Anor

THE DEPUTY JUDGE: This is an appeal under section 288 of the Town and Country Planning Act 1990 against the decision of the first defendant, the First Secretary of State, dated 8 May 2003. The decision was to allow appeals by the second and third defendants, Rachel and Elizabeth Cooper, under section 78 of the Act against the refusal of the claimants, the Basildon District Council, to grant planning permission for the change of use of land to a Gypsy caravan site. The land referred to is at the rear of Fanton Hall Cottages, Harrow Road, North Benfleet, Wickford, Essex, comprising two adjacent plots called Foxgrove and Blossom.

The effect of the decision was to grant planning permission for the change of use. The claimants, who are the local planning authority, are aggrieved by the decision. They submit that it is flawed in two respects and that it ought to be quashed. The first defendant, the First Secretary of State, had agreed with his inspector's recommendations contained in his report following a public inquiry held earlier in the year. However, the first defendant has reached the view that the claim issued by the claimants might well be established at the hearing and has offered to submit to judgment. He no longer seeks to support his inspector's conclusions or recommendations and he was not represented at the hearing.

The second defendant, Rachel Cooper, owns the land and it is occupied by her and her family, including her daughter in law, the third defendant, Elizabeth Cooper. They take a different view. They have been represented before me by Mr Willers who submits that the inspector reached a correct conclusion on proper grounds and that the appeal should be dismissed.

There is no doubt that both defendants were Romany, that is to say ethnic Gypsies. They claim that they still are and that the inspector reached a correct decision as to their present status. This is crucial to the outcome of the appeal. The claimants contend that the defendants have, and had at the time of the decision, abandoned their nomadic way of life and therefore their Gypsy status.

The claimants advanced two grounds of appeal before me. The first ground is that the inspector made an error of law and failed to give adequate reasons for his decision. The second ground is that the inspector failed to take into account relevant matters. The third ground has been abandoned.

In a nutshell, the claimants contend that the Secretary of State and his inspector got it wrong in determining that the second and third defendants are Gypsies. A number of criticisms are levelled against the inspector by the claimant's principal planning officer, Neil Costen, in a further witness statement. In order to set these matters in context, it is important to consider the statutory definition of Gypsies contained in section 24(8) of the Caravan Sites and Control of Development Act 1960, namely:

Detailed consideration of this definition and of judicial interpretations of it is contained in the judgment of Auld LJ in Wrexham County Borough v The National Assembly of Wales and Berry [2003] EWCA Civ 835. That judgment was delivered on 19 June 2003, that is to say after the inspector's decision in the present case. A petition for leave to appeal to the House of Lords has been lodged, but I have not been asked to adjourn pending the outcome of that application or any subsequent appeal. Accordingly, I am bound by it and base the present judgment upon the decision in Wrexham.

The defendants accept that the approach laid down by the Court of Appeal in that case is correct, subject to one proviso. Mr Willers would wish to submit that the Court of Appeal was wrong to rule that, if a traveller has retired permanently from travelling on grounds of ill health or age, then he no longer has a nomadic way of life and will have been deemed to have lost Gypsy status.

The question for me to consider is whether, taking the grounds in reverse order and adopting the approach laid down by Auld LJ in paragraph 57 of his judgment, the inspector failed to take into account relevant matters, or that he made an error of law and failed to give adequate reasons for his decision. The relevant matters for the inspector's consideration were whether the defendants were actually living a travelling life, whether seasonal or periodic in some other way, at the time of the determination. If they were not, then it was a matter of fact and degree whether the current absence of travelling meant that they no longer followed a nomadic way of life. It was conceded that they had formerly led such a lifestyle, so that the only question was whether they had abandoned it. On such an issue, it is relevant to consider whether the defendants do or do not come from a traditional Gypsy background (they clearly do) and whether they have or have not followed a nomadic way of life in the past (as they have). It is also relevant to consider, second, whether the defendants have an honest and realistically realisable intention of resuming travelling. If they do, how soon and in what circumstances? And third, the reason or reasons for the defendants not living a travelling way of life at the time of the determination and their likely determination.

Bearing this in mind, I examine the question whether the inspector can be shown to have failed to have taken any relevant matters into consideration. The key passage in the inspector's report is contained in paragraph 21. In that paragraph I conclude that the inspector considered the following matters. One, whether the defendant's family are ethnic Gypsies. Clearly the answer to that is, yes. Two, do they any longer travel? To which the answer is, no. Three, what is the reason for this? The lack of temporary sites is the answer, "They had only moved to the site when it became too difficult for them to live on the roadside". Four, do they intend to resume travelling? I quote again from the report, "They would like to do so, but are frustrated by the lack of temporary sites. It is clear that the effect of withholding planning permission would be for the families to return to a life on the road".

There was no evidence that the family had sought permanent housing. This suggests that they are not attracted by the idea of bricks and mortar and that they are not going to seek housing assistance. The inspector found that it was their wish to continue to live in caravans. Moreover, it is plain from paragraph 28 of his report that the inspector also considered relevant matters raised by the claimants in the contention that Gypsy status had been abandoned, that the families do not travel outside the area and that their employment is locally based. The inspector also noted that they visited annual Gypsy fairs. In an earlier paragraph (10), he had noted that the first defendant earned some money from the sale of craft items at these events.

In the light of these findings by the inspector, I am unable to agree with the contention expressed by Mr Costen in paragraph 15 of his statement, that the inspector did not address the reasons why the second defendant stopped travelling, her future intentions in respect of resuming travelling or her attitude towards living in a house. He clearly did address these matters and took them into account.

Furthermore, Mr Costen's assertions contained in paragraph 16 of his statement, that the second defendant had no future wishes or intentions to travel and never indicated a desire to resume travelling, are not borne out by the inspector's conclusions set out in paragraph 21 to which I have referred. Thus, although Mr Costen asserts that the second defendant had no future wishes or intentions to travel, and that she never indicated in evidence a desire to resume travelling, I find that the reverse is shown by the inspector's finding that the family would like to travel but are frustrated (ie unable and prevented from doing so) by the lack of temporary sites. It is clear that, when considering the relevant matters to which I have referred in paragraph 21, the inspector intended his conclusions to cover the case of the third defendant also.

Between paragraphs 39 and 43 of his report, the inspector gave proper and detailed consideration to the Gypsy status of the individual defendants. There can be no doubt that the inspector was well aware of the third defendant's desire to live in the day room on the advice of her doctor for the benefit of her children's health. He ensured, by the conditions imposed on the permission, that it should not be lived in on a 24- hour a day basis.

That brings me to the other ground of appeal, that the inspector made an error of law and failed to give adequate reasons for his decision. At paragraph 39, the inspector properly directed himself as to the definition of Gypsies and referred to three relevant authorities including the case of Wrexham which had not at that stage been considered by the Court of Appeal. It has not been shown to me that the inspector made any error of law. He correctly identified the relevant law and policy relating to the issue of Gypsy status and applied it to the case before him.

Is it shown that the inspector failed to give adequate reasons for his decision? At paragraphs 40 and 41 he reviewed and assessed the evidence relating to each of the second and third defendants and set out his reasons for concluding that each of them retained Gypsy status. It is clear from the decided authorities that a person can maintain his or her Gypsy status where he or she finds it impossible to maintain a nomadic lifestyle. In these and other parts of his report, notably paragraph 21, the inspector sets out the reasons for his conclusions in that regard.

I have been reminded that it is only necessary for the decision- maker to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal, important and controversial issues. In my view, the inspector has complied with this requirement. He makes it clear that his reasons for concluding that the defendants have retained their Gypsies status are that they have been driven to their present position by the failure of the claimants or other local authorities to provide proper sites for them to live on, by the lack of temporary sites and by considerations of ill health and the education of their children. They have moved not by choice but by necessity. They would prefer to live on the roadside, but find themselves unable to do so. The inspector correctly applied the law to his findings of fact and correctly concluded that the defendants had not abandoned their original Gypsy status.

It has not been established to my satisfaction that the inspector's decision is flawed in any of the respects alleged against him by the claimants. If it be necessary for me to say that his decision was perverse, I am quite unable to do so. The appeal is therefore dismissed and the decision of the inspector and the first defendant stands.

MR WILLERS: I am very much obliged, My Lord. Can I say, my Lord, at the beginning of the proceedings, I indicated that one of the defendants was publicly funded. In fact I was mistaken about that. Application forms have been submitted but they never made it to the Legal Services Commission on time.

THE DEPUTY JUDGE: I think you told me later on that you were instructed on behalf of both the second and third defendants and I assumed therefore that they had both obtained public funding.

MR WILLERS: One I thought had obtained public funding, the other one was instructing me on a private basis, but in fact, it transpired, I think, that the application forms had not been submitted within the requisite 5 days, so what I have instructed my solicitors to do is to serve on the claimant a schedule of costs, which I can hand up to your Lordship, and, my Lord, what I would ask is that in this case costs follow the event.

THE DEPUTY JUDGE: May I see the schedule?

MR WILLERS: Certainly, my Lord. There is also a covering letter which explains the position as far as public funding is concerned.

THE DEPUTY JUDGE: Yes, and your schedule of costs of the second respondent - - that is to say Rachel Cooper.

MR WILLERS: That is the way it has been drafted. I am not sure whether it would have been her that was responsible for all my costs or - -

THE DEPUTY JUDGE: You would have been in difficulty if the decision had gone against you.

MR WILLERS: My Lord, yes, but I felt I had to turn up today to find out the results, not just for that reason but for obvious reasons.

THE DEPUTY JUDGE: Thank you very much. Well, Mr Miller, what do you say to the application that you should bear the costs?

MR MILLER: My Lord, they do generally follow the event and our appeal was unsuccessful. My Lord, I would submit the First Secretary of State did not resist the appeal but they did agree to pay our costs up to trial. Putting that to one side - -

THE DEPUTY JUDGE: I am not concerned with his position at present, am I?

MR MILLER: My Lord, no.

THE DEPUTY JUDGE: The question is whether, as a matter of principle, you are able to dispute that costs follow the event and I understood you to say that you cannot properly argue that.

MR MILLER: That is correct.

THE DEPUTY JUDGE: Very well. Have you any observation to make on the amount of costs claimed by the second defendant or respondent?

MR MILLER: My Lord, yes. In terms of the first cost, solicitors costs - - it says attendance and preparation 3 and a half hours - - I have to say I find that excessively high both in terms of cost and time, particularly as they are not legally aided. Secondly, it is an attendance by an agent. My Lord, I submit, firstly, that there is no necessity at all to have an agent at court, and secondly, the amount of £80 an hour again is excessive - - likewise travel. My Lord, without pouring scorn on Mr Willers' fees, I would just note that in terms of his fees they are double my fees.

THE DEPUTY JUDGE: When I was at the Bar I often found that counsel's fees varied very considerably between counsel instructed by a private individual and those instructed by a public authority. I make no criticism of that, but it does not surprise me altogether that there should be a disparity in the level of fees.

MR MILLER: My Lord, that is correct, but without going too far, if someone is publicly funded, in which case it is really a matter in terms of what a briefing actually is or should be. Since he is not, it seems he has a brief fee on a private basis.

THE DEPUTY JUDGE: It is very invidious for me to chip away at counsel's fees and I dislike doing so.

MR MILLER: My Lord, you could use mine as a guide in terms of what is or is not appropriate, particularly bearing in mind that initially we were not told until half an hour ago they were not publicly funded. So one would expect to pay far less than the £4,500- odd of counsel's fees if he was publicly funded, as we were told up to half an hour ago. It seems grossly unfair that counsel are told now at this late stage that there is in fact no public funds and it is a privately paying brief.

THE DEPUTY JUDGE: What do you say to that criticism, Mr Willers?

MR WILLERS: My Lord, I think the letter - - I am not sure about the schedule but I think the letter was sent to those instructing Mr Miller yesterday - - late in the day, I accept that. As far as the fees are concerned, I could call my clerk who might tell you about the fees that he would have been claiming if we were publicly funded, but they would have been, from my experience, exactly the same as those fees which we claimed here. Whether or not they would be subject to any reduction by the Legal Services Commission is another matter which is, I suppose, what your Lordship is being asked to consider today. I do not want to go into the difference perhaps between myself and Mr Miller's fees. Fees are generally negotiated on the basis of years of call, experience and the like, and it is very much an open market. I think in this case your Lordship will bear in mind that the second and third defendants were initially in a situation where they were faced with something which seemed to be an uphill struggle given that the first defendant had bowed out of the proceedings. This was a claim brought by the claimant. They risk, in those circumstances, having to pay the defendant's costs. They have lost on all grounds and withdrawn one of them during the course of the proceedings, and if one looks at - - moving away from my fees which I am rather embarrassed to talk about - -

THE DEPUTY JUDGE: I feel equally embarrassed. I dislike very much examining the level of counsel's fees. Suffice to say this. You are clearly very experienced in your field and I received the very greatest assistance from you. I am not going to chip away at your fees.

MR WILLERS: I am grateful, my Lord. It may be that I am only very experienced in the Gypsy field, but that is what we have been dealing with. But as far as the solicitors are concerned, three and a half hours attendance and preparation, your Lordship will appreciate that there was a significant bundle of papers which had to be considered by my instructing solicitor. He is a senior solicitor, he is not somebody who would just necessarily pass the papers down to counsel for consideration. He is also something of an expert in this area. Three and a half hours to read the brief and prepare instructions to counsel, in my submission, would not be excessive. As far as attendance at court is concerned, he did not attend thereby saving some cost. He sent an agent instead who happened to be the gentleman who had represented the defendants at their planning inquiry, Mr Neil Weekes(?). The charge of £80 a hour - - I am not certain what agents or, as it were, what used to be called outdoor clerks, now charge, but your Lordship might consider this when deciding whether or not it was appropriate that counsel attended. The difficulties that we faced on the first day as a result of the fact that both - - certainly Elizabeth Cooper found the whole proceedings to be quite overawing and she needed at one stage the attendance of a first aider of this court. So there were two defendants who had, in my submission, some difficulty in understanding the proceedings and needed the assistance of an agent to be on hand. I would suggest that counsel ought to be, in circumstances such as this, invariably attending. I see Mr Miller has been attended quite ably and admirably by his instructing solicitor. I would suggest that the same ought to be afforded to the defendants.

THE DEPUTY JUDGE: Why was it necessary for the agent to attend on the second day and today for judgment?

MR WILLERS: For the very same reason that he was there to effectively not just take care of me but take care of the defendants.

THE DEPUTY JUDGE: I saw the second defendant come in very briefly just now. She has left court now. She was not in court during the time I was delivering my judgment.

MR WILLERS: She was not, my Lord. Elizabeth Cooper, as your Lordship will remember, found it difficult to sit in court on the first day. I cannot remember whether she made it in on the second. But your Lordship will remember at the outset of the proceedings again we discussed the fact that we would make sure that if Elizabeth Cooper had to sit outside, she would be apprised of the proceedings so that there would be no need for her to stay.

THE DEPUTY JUDGE: I am minded to allow you the attendance of an agent for the first day, that is to say 5 hours, but not subsequently.

MR WILLERS: I am grateful, my Lord. My Lord, can I just deal with one matter. Perhaps the reason why Mr Miller did not appreciate that we were not publicly funded is because the letter I handed to your Lordship was sent to Sharpe Pritchard, that would be the first defendant's solicitors, and I have not got a copy of the letter that was sent to the claimant's solicitors.

THE DEPUTY JUDGE: So the claimant's did not receive this letter?

MR WILLERS: It does not appear that they did. Certainly Mr Miller's solicitors were not aware of that fact.

THE DEPUTY JUDGE: But does that make any material difference?

MR WILLERS: It does not make any difference to the submissions that I have made to your Lordship.

THE DEPUTY JUDGE: It would have made a difference if you had achieved public funding perhaps.

MR WILLERS: Exactly, because the claimant could cry foul.

THE DEPUTY JUDGE: With the refinement that I have mentioned as to the attendance by the agent, which I have reduced from £720 to £400, you may have an order for costs in the figure set out in your schedule.

MR WILLERS: I think that would be a total of 6,000 - - it will be a VAT figure.

THE DEPUTY JUDGE: You work it out and let the associate know the figure.

MR WILLERS: Certainly, my Lord.

MR MILLER: My Lord, I would seek permission to appeal to the Court of Appeal.

THE DEPUTY JUDGE: On what grounds?

MR MILLER: In your judgment you went through Wrexham, but you made the point that one of the things you took into account was the lack of temporary sites. My Lord, that was not mentioned at all in Wrexham as a reason. Moreover, if what you say is correct, from what I understand in my experience of Gypsy matters, there is both a local and national shortage. That would, in effect, mean that every person who is a Gypsy can rely on the fact that there is a lack of sites both locally and nationally. That being so, if one follows through what my Lord found today, you would automatically be a Gypsy.

THE DEPUTY JUDGE: You did not take this point in argument before me, did you? Your appeal was based on a flawed decision on the part of the inspector and the present argument did not enter into your submissions so far as I recall.

MR MILLER: My Lord, no, but in terms of whether or not someone is a Gypsy, lack of sites did not feature in the Wrexham case at all.

THE DEPUTY JUDGE: Perhaps that court was not concerned with lack of sites, I do not know.

MR MILLER: My Lord, in every Gypsy case it is submitted that there is a lack of sites nationally and locally, particularly in Essex. That being so, the court in Wrexham did not make any findings about whether or not a lack of temporary sites is sufficient reason in terms of whether or not one is or is not a Gypsy at any time or otherwise.

THE DEPUTY JUDGE: Yes. Is that your application?

MR MILLER: My Lord, yes.

THE DEPUTY JUDGE: What do you say to that, Mr Willers?

MR WILLERS: My Lord, the case of Wrexham was not a case where either party asked the Court of Appeal to consider the situation that we have in this case where someone claims to have retained Gypsy status in circumstances where they are forced to give up their nomadic way of life because of a lack of sites. So this is not a case where, other than the general application that I took your Lordship to and your Lordship adopted, that really is touched on by the Wrexham judgment. My Lord, in those circumstances, I would submit that there is no need or reason to grant permission because there is no realistic prospect of success in this case.

THE DEPUTY JUDGE: Do you want to say anything more, Mr Miller?

MR MILLER: My Lord, no.

THE DEPUTY JUDGE: This is not a case where I am disposed to grant leave to appeal. If it should transpire that leave is granted in Wrexham, and that subsequently their Lordship's House make pronouncements on the law which affect the present case, then no doubt application can be made to the Court of Appeal for leave to appeal. At present, I take the view that an appeal is not likely to succeed. Thank you both for your assistance.