Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE HARRISON
THE QUEEN ON THE APPLICATION OF LORRAINE JONES
(CLAIMANT)
-v-
THE FIRST SECRETARY OF STATE
(1ST DEFENDANT)
AND
SEDGEMOOR DISTRICT COUNCIL
(2ND DEFENDANT)
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MR S COTTLE (instructed by South West Law) appeared on behalf of the CLAIMANT
MR T MOULD (instructed by Treasury Solicitor) appeared on behalf
of the DEFENDANT
THE SECOND DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
J U D G M E N T
MR JUSTICE HARRISON: This is an application to quash a decision of an Inspector appointed by the First Secretary of State dated 2nd July 2003 when he dismissed an appeal made by the applicant against a decision of Sedgemoor District Council refusing to grant Mrs Jones planning permission for the use of land owned by her for the siting of three permanent gypsy mobile homes at Oakdale, Battleborough Lane, Brent Knoll in Somerset.
The applicant is a gypsy. She proposed to occupy one of the mobile homes herself together with her 15-year-old son, Shane. One of the other two mobile homes was to be occupied by her married daughter and her husband, and the other mobile home was to be occupied by the applicant's elderly mother, Mrs Isaacs. The applicant's son, Shane, cannot read or write, as a result of some six years with no settled home base. He has, prospectively, special educational needs which it was hoped to cater for in Bridgewater for a period of some three years. The applicant's mother is 77 years old. Her health has deteriorated so that she is less able to fend for herself. She was registered for care near Plymouth, where her medical conditions had been treated over many years.
The site itself is located in the countryside in the vicinity of Brent Knoll, a locally distinct feature which dominates the landscape. Its summit is an Ancient Monument and much of it is owned by the National Trust. Footpaths cross the Knoll from many directions and there is an Article Direction in force to ensure strict control of development which might affect it or its setting. Planning policies in local plans have continued the aim of protecting the Knoll and its setting by identifying it as a Special Landscape Feature, the appeal site being within the area so defined.
The Inspector identified the main issues on the appeal in paragraph 1 of his decision letter, when he stated:
"The main issues are the effect of the proposal on the countryside, particularly having regard to the site's location in the vicinity of Brent Knoll and policies for the protection of the visual qualities of the area, and whether there are special circumstances of sufficient weight as might outweigh any objections arising from those considerations."
In giving his conclusions on the first of those two issues, the Inspector stated at paragraph 16 of his decision letter:
"... I am led to conclude that the use of the site by mobile homes would be harmful to the appearance of the countryside within the setting of Brent Knoll."
In paragraph 17, he stated:
"... the development of the site by the mobile homes would be damaging to the character of the countryside which is integral to the setting of Brent Knoll which longstanding planning policies have aimed to safeguard".
In paragraph 18, he stated:
"I am therefore of the same opinion as preceding Inspectors who have found proposals relating to the site to be seriously harmful to the visual qualities and character of the area, having in mind the force of the policies which bear upon it."
He then referred to the various policies, and continued:
"While circular 1/94 acknowledges that sites for gypsy accommodation may be found in rural situations, there should even so be consistency with countryside policies; pointing out the inappropriateness of locating sites in areas where development is severely restricted, the present site would in my view qualify as falling within 'other protected areas' in view of the policies applying to this notable landscape feature."
In referring to "other protected areas", the Inspector was referring to words contained in paragraph 13 of Circular 1/94 to which I will have to return.
The Inspector then turned to deal in his decision letter with the second issue identified in paragraph 1, namely whether there were special circumstances of sufficient weight which might outweigh the objections he had identified when dealing with the first issue. He dealt with that at some length in paragraphs 21 to 27 of the decision letter. In paragraph 21 he remarked that, when dealing with the merits of previous attempts by the Jones family to reside on the site, previous Inspectors had taken account of their personal circumstances, including the educational needs of the children, but had not found those considerations to be of such weight as to override the desirability of protecting the landscape of the Knoll, bearing in mind the aims of the adopted policies.
In paragraph 22 he dealt with Shane's educational needs and the fact that the County Council had been approached with a view to establishing Special Educational Need, and that he, the Inspector, had been told that the most likely source of small group tuition would be in Bridgewater. With Special Educational Need, his education could then continue until the age of 19. In paragraph 23, he stated:
"I am not unsympathetic to the encouragement which Mrs Jones now wishes to give to her son, but I am conscious that on the information before me, any response to his education needs is most likely to be met at Bridgewater such that the present site, some distance away, would not offer a particularly strong justification for the grant of permission."
In paragraph 24 he dealt with the circumstances relating to Mrs Isaacs, which I have already summarised previously. In paragraph 25, he stated:
"In the overall balance, however, I do not consider the desire of Mrs Isaacs for appropriate medical care contingent upon a fixed abode, compelling as this circumstance may be, to carry greater weight than the harmful implications of the proposal upon this area of landscape which is specifically identified for its scenic qualities and subject to tight control of development, a situation which has been endorsed on a number of occasions."
In paragraphs 26 and 27 the Inspector dealt with the question of alternative sites. In paragraph 26 he stated:
"Both Mrs Jones and Mrs Bendall-Smith contend that there are no available alternative sites on which to settle the family."
He then made specific reference to two particular sites, and continued:
"On the evidence before me, taking into account the plan produced by the Council, there are a number of private sites dotted around the District. Circular 1/94 indeed seeks to encourage provision of private sites."
In paragraph 27, he stated:
"I do not doubt the difficulties involved in finding a piece of land suitable in terms both of gypsy requirements and policy acceptability, but I am not entirely convinced that the situation is as negative as has been painted. While Mrs Jones indicated that she keeps in touch with an estate agent seeking land such as small paddocks/orchards or such like, these usually prove too expensive. Even so, I gauge there to be no evidence of a concerted effort having been made to search out a site, and certainly Mrs Jones has not come forward to canvas any potential sites for consideration by the Council. I do not say this unkindly but it seems to me that Mrs Jones' heart is set on establishing a site at Brent Knoll despite the resistance to this which has been maintained over many years for sound planning reasons and with which I find myself in accord. While I can understand her desire, having acquired the land some 15 years ago, I am unable to agree the appropriateness of the site for mobile homes for the reasons which I have given."
In paragraph 28 the Inspector referred to another decision in which weight had been attached to the health of the applicant and the education of her children, and he continued:
"I have, however, afforded weight to the similar personal circumstances in this case but on balance have concluded that the planning objections to the development, bearing in mind the site's history and objectives of planning policies, carry the greater weight."
The Inspector then went on to consider the possibility of a temporary planning permission. In paragraph 29 he stated:
"I realise that, exceptionally, a temporary permission was granted in 1990 in order to allow an alternative site to be found. Such a temporary arrangement cannot be considered in the same light as the current proposal which is for permanent accommodation. While, for the appellant, it was suggested that a further grant of temporary permission might be considered, say for five years allowing for review or for the lifetime of Mrs Isaacs, I have not thought it appropriate to adopt that course. Mrs Isaacs may well yet enjoy many years with the family, with or without a settled base. A grant of permission in such circumstances would give the site a degree of permanence as the family becomes established on it. Bearing in mind the likelihood of Tammie and her husband having a family, as is her wish, the situation in five years time could well be that she would be looking to place children in the local school for which continued residence on the site would be claimed and which would be difficult to resist on the grounds of disruption to education".
In paragraph 30 the Inspector, therefore, stated that it was those considerations which led him to the view that a grant of temporary permission at this time would be likely to result in the permanent establishment of residential mobile homes on the site.
Finally, the Inspector considered the issue of human rights. He remarked in paragraph 32 that the site does not actually represent the family home. At paragraph 33, he stated as follows:
"I realise that dismissal of the appeal would result in an interference with Mrs Jones' desire for home and private and family life. However, that interference must be balanced against the public interest in pursuing the legitimate aim of preservation of the environment by safeguarding the countryside from harm. The objections to the proposed development are serious ones and cannot be overcome by granting a temporary planning permission or one subject to other conditions; the public interest can only [be] safeguarded by the refusal of permission. In all the circumstances, I consider that the refusal of planning permission is necessary in a democratic society in furtherance of the legitimate aim to protect the special landscape in which the site lies; the refusal does not place a disproportionate burden on Mrs Jones and I therefore consider that dismissal of the appeal would not be a violation of her rights under Article 8 of the Convention."
The Inspector concluded in paragraph 34:
"For the reasons given above and having regard to all other matters raised, I conclude that the appeal should be dismissed."
Mr Cottle, on behalf of the applicant, has raised five grounds in support of this application to quash that decision. His first ground, put shortly, is that the Inspector failed to deal with the overall unmet need for the provision of gypsy sites on which there was an issue between the parties, as opposed to the applicant's personal needs. He pointed out that permission had been sought on the basis of the under provision of sites in Somerset, and that the Inspector had the relevant statistics.
The issue of unmet need was therefore put before the Inspector and, as was conceded by Mr Mould on behalf of the First Secretary of State, that is a material consideration. Reference was made to the case of Hedges v Secretary of State for the Environment [1997] 73 P&CR 534 where Mr Moriarty QC, sitting as a deputy High Court judge, quashed a planning decision relating to a gypsy site on grounds that the Inspector had omitted to consider the need for provision of sites for gypsies generally, or the personal needs for accommodation, independently of the question of personal circumstances or hardship. I have been taken to some of the details of that case. One matter mentioned by the Inspector was that he was mindful that there were no pitches available on council traveller sites in the district and that options open to the applicant were limited.
However, it is clear that, whilst there are some similarities between the circumstances of that case and this one, it is certainly not on all fours with the present case. As I have mentioned, it is accepted by Mr Mould that the general need is a material consideration. The real issue between the parties on this first ground is whether the Inspector has dealt with the question of general need in this case.
That has to be considered in the context of how the case was put. Whilst undoubtedly it was claimed that there was an under provision of gypsy sites, it was also put on the basis of the difficulties experienced in trying to find alternative sites for the applicant. In that way, there is necessarily and understandably an eliding of the general need with the applicant's personal need. I, therefore, do not find it surprising, in the circumstances of this case, that the Inspector dealt with it in the way that he did.
I have already quoted parts of paragraph 26 of the decision letter, and I particularly refer, first of all, to the fact that, in that paragraph, the applicant's assertion is recorded that there are no available alternative sites and that, at the end of that paragraph, the Inspector stated that, on the evidence before him, taking into account the plan produced by the council, there were a number of private sites dotted around the district, and that Circular 1/94 seeks to encourage provision of such private sites. That, in my view, is plainly dealing with the issue of general provision. So also is the first sentence of paragraph 27, where the Inspector says that he does not doubt the difficulties in finding land suitable in terms of both gypsy requirements and policy acceptability, but that he was not entirely convinced that the situation is as negative as had been painted. That again is, in my view, a reference to the general situation.
The Inspector, whilst not evaluating the general need in the way that Mr Cottle perhaps would have liked, has come to a general conclusion that, in effect, the general situation is not as bad as was claimed. Indeed, he goes on to say that he does not think that the applicant had made a sufficiently concerted effort to find a site because her heart was set on this site which she owns.
Whilst I would accept that it might have been better if the Inspector had dealt separately with the general and personal needs, in the circumstances of this case they are necessarily intertwined, and I do not think it can be fairly said that he has completely failed to deal with the general need so as to give rise to a successful ground of challenge.
I come then to the second ground of challenge, which is, put shortly, that the Inspector failed to deal with the material considerations in favour of planning permission cumulatively. Mr Cottle helpfully set out the various material considerations in his skeleton argument. He went through the decision letter, in much the same way as I have done, paragraph by paragraph, and then he made the point that the Inspector dealt with each of those various material considerations discretely. He submitted that the Inspector had not assessed them as a composite whole. He also suggested that the last sentence in paragraph 27 of the decision letter, when the Inspector stated:
"I am unable to agree the appropriateness of the site for mobile homes for the reasons which I have given."
Showed that the Inspector had already reached a decision by that stage.
I do not think that that is a fair assessment. It is certainly not unknown for a decision-maker to reach an overall decision on a case, and to mention that general conclusion whilst dealing with discrete parts of the case. It is, as Mr Mould rightly said, trite law that the decision letter has to be read as a whole. It is for the Inspector to decide on the way he sets out his reasons, and he certainly cannot be criticised for dealing with the various subject matters discretely. The question I have to decide is whether looking at the decision letter as a whole, the Inspector has failed to consider the various matters cumulatively.
It would, in my view, be remarkable if he had failed to do that and had simply worn blinkers throughout, without appreciating the totality of the situation. His identification of the main issues in paragraph 1 of the decision letter, which I have already quoted, necessarily involves an overall planning balance, and when he gave his final conclusion in paragraph 32, which I have, again, already quoted, I cannot conclude that it was a decision reached by him without considering the matter cumulatively. I would need something much more persuasive and specific in order to come to such a conclusion in a case such as this.
Coming to the applicant's third ground of challenge, it is submitted that the Inspector failed to consider properly whether to grant temporary planning permission. I have already quoted paragraph 29 of the decision letter, and I have summarised paragraph 30 of the decision letter, which dealt with the question of temporary planning permission. I have also quoted paragraph 33, one sentence in which also deals with the issue of temporary planning permission.
When dealing with this issue, it is necessary to consider paragraphs 109 and 110 in the schedule to Circular 11/95. The relevant part of paragraph 109 of Circular 11/95 reads as follows:
"Thus, the reason for granting a temporary permission can never be that a time-limit is necessary because of the effect of the development on the amenities of the area. Where such objections to a development arise they should, if necessary, be met instead by conditions whose requirements will safeguard the amenities. If it is not possible to devise such conditions, and if the damage to amenity cannot be accepted, then the only course open is to refuse permission. These considerations will mean that a temporary permission will normally only be appropriate either where the applicant proposes temporary development, or when a trial run is needed in order to assess the effect of the development on the area."
Paragraph 110, which comes under the heading, "Short-term buildings or uses", states as follows:
"Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that intention, or because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified."
Mr Cottle submitted that the discretion given by section 72 of the Town and Country Planning Act 1990 to grant a planning permission for a limited period should be exercised in accordance with Convention rights under Article 8, which involves a careful appraisal of the matter relied upon: see Chapman v United Kingdom 33 EHRR 18. But, he said, the Inspector here has not appraised the various matters that may change, including the applicant's son's education.
Mr Mould, on the other hand, drew my attention first of all to the sentence in paragraph 33 of the decision letter, which states:
"The objections to the proposed development are serious ones and cannot be overcome by granting a temporary planning permission."
He submitted that that sentence was a straight reflection of paragraph 109 of Circular 11/95, which I have just quoted, that is to say that the circumstances were such here that there should, in any event, be a refusal of planning permission. Mr Cottle suggested that that sentence in paragraph 33 of the decision letter was simply a reflection of what the Inspector had said in paragraph 29 of the decision letter. I do not think that that is so, because the serious objections to which the Inspector was referring in paragraph 33, are plainly the countryside/landscape objections. I prefer Mr Mould's argument on that point. Furthermore, I think Mr Mould is right in saying that paragraph 110 of Circular 11/95 is primarily envisaging developments which may be justified for a temporary period but whose justification is likely to disappear by the end of that period. In that sense one can understand what the Inspector was getting at in paragraph 29 of the decision letter when he concluded, for the reasons that he gave, that the grant of temporary permission is likely to result in a permanent mobile home site. I do not, therefore, consider that there is any error of law in the way that the Secretary of State dealt with the issue of a temporary planning permission.
The fourth ground of challenge relates to the Inspector's conclusion in paragraph 18, the last sentence of which I should quote again. He said:
"While Circular 1/94 acknowledges that sites for gypsy accommodation may be found in rural situations, there should even so be consistency with countryside policies; pointing out the inappropriateness of locating sites in areas where development is severely restricted, the present site would in my view qualify as falling within 'other protected areas' in view of the policies applying to this notable landscape feature."
As I said earlier, the reference to "other protected areas" is a reference to paragraph 13 of Circular 1/94 which states as follows:
"As a rule it will not be appropriate to make provision for gypsy sites in areas of open land where development is severely restricted, for example, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest, and other protected areas."
Mr Cottle drew my attention to Policy H34 of the emerging Sedgemoor District Local Plan which states:
"Small-scale sites to meet genuine needs for gypsies and other travelling people will be permitted subject to the following factors: ... "
There are then set out five factors, factor c) being:
"no adverse impact upon the appearance of the countryside and environment generally;"
However, the part of that policy on which reliance is placed by Mr Cottle is the last paragraph, which says:
"Sites will not be permitted in the Quantock Hills and Mendip Hills Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest or 'other nationally designated sites'."
Mr Cottle referred to the word "nationally" included in that paragraph, whereas national policy in Circular 1/94 does not include the word "nationally". He submitted that the Inspector therefore failed to take into account that there was a Local Plan policy which was more relaxed than the national policy and which would not be breached by this development.
That is, if I may say so, an ingenious submission, but the short answer is that the Inspector was perfectly entitled to base his conclusion on the national policy in the way that he did. The Local Plan was only a draft Local Plan but, insofar as he considered it, as he quite properly did, he made it plain in paragraph 18 of the decision letter that this development contravened, not only factor (c) in Policy H34, but also Policy CNE17, which stated:
"Development which would adversely affect landscape features of significant local importance will not be permitted."
For those reasons, I do not consider that there is any force in this fourth ground of challenge.
The fifth and last ground of challenge relates to paragraph 23 of the decision letter. The relevant part of which I quote again:
"I am not unsympathetic to the encouragement which Mrs Jones now wishes to give to her son, but I am conscious that on the information before me, any response to his education needs is most likely to be met at Bridgewater such that the present site, some distance away, would not offer a particularly strong justification for the grant of permission."
Mr Cottle submitted that, in concluding that the educational needs of Shane did not offer particularly strong justification due to the distance of Bridgewater, the Inspector failed to take into account such matters as whether it was practical for him to get there, whether there might be another site closer, or whether there might be the requisite facilities at a different school elsewhere.
The Inspector, however, decided the case on the evidence presented to him. This conclusion in paragraph 23 of the decision letter was, in my view, in effect, a quality judgment. The distance of the site away from Bridgewater affected the strength of the educational point. The Inspector was not saying that it was impractical to get there, he was simply saying it was some distance away. As Mr Mould said, it might have been very different if the site was within a stone's throw of the school rather than ten miles away.
In my view, this involves, as I have said, a matter of judgment which is a matter for the Inspector and is not a matter with which this court ought to interfere. It follows, therefore, for the reasons that I have given, that this application must be dismissed.
MR MOULD: My Lord, I am grateful. I apply for an order that the application be dismisses with the first defendant's costs. I am aware that the claimant is an assisted person and, therefore, accept that any order for costs would need to be couched in terms of the usual order for deferred assessment and liability.
MR JUSTICE HARRISON: I know that one has to be rather careful with the terms that one uses now. It is not the words "not to be enforced without the leave of the court", is it?
MR MOULD: No.
MR JUSTICE HARRISON: Can you just remind me of the words again?
MR MOULD: I think Mr Cottle knows the words, do you mind if I defer to him on that point?
MR JUSTICE HARRISON: Yes, thank you.
MR MOULD: But, as I say, I am obviously content that the usual form of words should apply.
MR JUSTICE HARRISON: Thank you very much.
MR COTTLE: Yes, it is difficult for me to resist the application. As I understand it, the wording is to the effect that my client pays the assessed costs of the First Secretary of State's determination of liability and is postponed according to section 11 of theAccess to Justice Act 1999.
MR JUSTICE HARRISON: Section 11 of the what?
MR COTTLE: Access to Justice Act 1999, I may be wrong as to the precise terms, but it is to that effect. So if the First Secretary of State wants to seek costs against my client he has to make an application.
MR JUSTICE HARRISON: Yes, well that is certainly what I think you---
MR COTTLE: And also there is a separate order on costs that I would need, which is for detailed assessment of my publicly funded costs. There are other costs that are not inter partes which we would have incurred and we need assessment on as well.
MR JUSTICE HARRISON: You presumably have no observations on that, Mr Mould?
MR MOULD: No, it must follow.
MR COTTLE: My Lord, I have to trouble you in respect of one point which is that under section 288----
MR JUSTICE HARRISON: Could you just give me one moment, please? Yes, I am sorry.
MR COTTLE: My Lord, were those instructing me to wish to take it further, the matter would begin by asking what the learned judge's views were on an application to appeal, so I must ask for permission to appeal from you. I would concentrate, if I may, just on the last ground, and of course it is a matter of judgment for the Inspector, as you set out, but every judicial decision has to be based on the relevant matters, and the difference obviously between my submissions and your conclusion was that I was submitting that there were relevant matters that should be taken into account because if he could get access to the school in Bridgewater as easily as the Inspector drove to the site, then there was a substantial factor in favour of permission and not one of little weight.
MR JUSTICE HARRISON: Yes, I see.
MR COTTLE: That is the only point which I seek your leave or permission to take further.
MR JUSTICE HARRISON: Thank you very much. Do you have any comment on that, Mr Mould?
MR MOULD: I would respectfully adopt your Lordship's response to that, and just say that that raises no arguable issue which justifies this case being heard by the Court of Appeal.
MR JUSTICE HARRISON: Yes, thank you. Mr Cottle, I am not prepared to grant permission to appeal. I will make an order that the applicant pays the assessed costs of the First Secretary of State, to be postponed. There to be a determination of the liability to pay those costs pursuant to section 11 of theAccess to Justice Act 1999. I will also make an order that there should be detailed assessment of the applicant's publicly funded costs.
MR COTTLE: I am grateful.
MR JUSTICE HARRISON: I am very grateful to you both for your assistance during the case.