Butler, R (on the application of) v Bath and North East Somerset District Council & Ors

This is an application under section 287 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash the Bath and North East Somerset, Bristol, North Somerset, and South Gloucestershire Joint Replacement Structure Plan ("the Structure Plan"). The Structure Plan was adopted by the four defendants on 23rd September 2002. This application was made on 13th November 2002 within the statutory six week period. At the start of the hearing yesterday, the claimant sought to amend the claim form in accordance with a letter sent by her solicitors to the defendants on 14th November 2002. There was no objection to that application, and I granted permission to make the three amendments sought.

The claimant is a gypsy within the statutory definition in section 24(8) of the Caravan Sites and Control of Development Act 1960. That definition refers in particular to persons having a nomadic lifestyle. She is also a Romany gypsy, a recognised ethnic group within the scope of the Race Relations Act 1976. The claimant lives in and resorts to the area of the Structure Plan. She lives with her daughter and grandchildren. At present she is living in the area of the third defendant.

The present claim relates to the Structure Plan, which was introduced to replace the Avon Structure Plan, and covers approximately the same area as that of the former county of Avon, which was abolished and replaced by the four defendant authorities in 1996. The defendants are unitary authorities. In order to have a coordinated approach to the drafting of the replacement Structure Plan, the four defendants established a Joint Strategic Planning and Transportation Committee ("JSPTC" or "Joint Committee").

I have before me a witness statement from Roger Daniels, who is the director of the JSPTC, and has been in that post and involved in the process of drafting the Structure Plan since September 1996. His witness statement begins in bundle A at page 94, and I will need to refer extensively to it. Mr Daniels notes at paragraph 3 that Policy 37, to which I will have to return in greater detail, evolved from Policy 33 of the Deposit Draft Structure Plan. This evolution followed objections to the Deposit Draft, an examination in public, the Panel's report, proposed modifications, objections to the proposed modifications, and further modifications, which responded to the Secretary of State's direction concerning total housing numbers. At paragraph 4 he states:

Policy 33, which he then sets out at paragraph 5 of his witness statement, stated as follows:

At paragraph 7 of his witness statement, Mr Daniels says this:

Policy 33 was then considered by the examination in public. Gypsy sites were included with Policy 32 under what was described as "Matter 15", as agreed by the Joint Committee on 22nd October 1998. As Mr Daniels says at paragraph 9 of his witness statement, when Matter 15 was discussed at the examination in public on the morning of 19th March 1999, participants included a representative of the National Romani Rights Association. There is before the court evidence which was given to the Panel on behalf of the defendants, in particular as to the history of seeking to identify gypsy sites in each of their areas. That is in the defendants' bundle of factual materials at page 54, and I will refer to examples of what was said in that evidence in order to give a flavour of the position at that time. What the North Somerset Council (the fourth defendant) said to the inspector, as recorded at the top of page 54, was:

South Gloucestershire, which is the third defendant, on the same page is recorded as saying:

The report of the Panel after the examination in public dealt with the issue of Policy 33 at paragraphs 3.61 to 3.63, which is before the court in the defendants' factual bundle at pages 61 to 62. I will quote those paragraphs:

The report of the Panel then proceeded to make a recommendation in relation to Policy 33, which was R21. That recommendation, R21, read as follows:

The chronology in relation to the development of the drafting of the Structure Plan can then be taken up from Mr Daniels' witness statement at paragraphs 10 and following, where he says:

At paragraph 14 of his witness statement, Mr Daniels refers to objections which were received to the new Policy 37, and continues as follows:

At paragraph 16, Mr Daniels continues:

Paragraph 17 of his witness statement reads as follows:

Paragraph 18 of Mr Daniels' witness statement reads as follows:

I will have to return to Mr Daniels' witness statement in due course, but that will suffice for present purposes to recite the factual history of the process by which the Structure Plan was adopted.

Section 287 of the 1990 Act, so far as material, provides as follows:

The claimant alleges in this court that there has been a breach of a procedural requirement imposed by regulations made under the 1990 Act, and that she has been substantially prejudiced thereby. The relevant procedural requirement is contained in the Town and Country Planning (Development Plan) (England) Regulations 1999 (SI 1999/3280). Regulation 15 of those regulations, so far as material, provides as follows:

It is common ground that a local planning authority is not bound by recommendations by the Panel. But Mr Jones submits that if it is to depart from a recommendation, it must follow the procedure in regulation 15(4) and give reasons for its departure from the recommendation, not least because that enables an interested person to scrutinise those reasons and, if appropriate, to challenge them in a court of law.

Circular 1/94, to which I have already made reference, is headed "Gypsy Sites and Planning" and is to be found in the defendants' factual materials bundle at page 18. I will quote material parts of it. Paragraph 1 states:

Paragraph 6 of the circular begins as follows:

Paragraph 9 of the circular reads as follows:

Paragraph 12 of the circular reads as follows:

Having considered the parties' written and oral submissions, it appears to me that three principal issues arise in this case: (1) Did the defendants breach regulation 15(4)? (2) If so, does it follow that the entire Structure Plan should be quashed? (3) If not, should Policy 37 be quashed?

This issue in turn depends on whether the defendants committed an error of law in their interpretation of the Panel's recommendation R21. If they did not, it would follow that the procedural obligations in regulation 15(4) never applied, and so there was no breach of that regulation.

Mr Jones submitted that the defendants did misinterpret R21. The thrust of his argument was that it was clear that R21 recommended identification of sites for gypsies in the local plans, not merely the laying down of criteria by which sites could be identified later. He referred to the former technique as identifying through locational means, and the latter technique as identifying through criteria-based policies. He submitted that R21 was unambiguous on its face, but that if there were any ambiguity, it was legitimate to have regard to the context, in particular the Panel's reasons at paragraphs 3.61 to 3.63 of their report, which I have cited already.

This approach to interpretation was not disputed by Ms Lieven, who appeared for the defendants, and I agree with it. In interpreting documents, the court should always have regard to the context. However, Ms Lieven submitted that the proper approach to the interpretation of a recommendation in a Panel report is not to construe it like a statute. Further, she submitted that an analogy can be drawn with the decision of the Court of Appeal in R v Derbyshire County Council, ex parte Woods [1997] JPL 998, in which it was held that the construction of a planning policy is a matter for the relevant planning authority, provided that its interpretation is reasonably open to that authority, even if the court might have reached a different interpretation itself.

In an important concession made in his reply, Mr Jones accepted that that is the correct approach for the court to take. I agree with Ms Lieven's submission, and with Mr Jones' concession. Applying that approach, I have come to the conclusion that it was reasonably open to the defendants to interpret R21 as they did. See paragraph 21 of Mr Daniels' witness statement, where he says:

My reasons for reaching that conclusion are as follows:

At this point it seems to me to be appropriate to refer again to Mr Daniels' witness statement, first at paragraph 22, where he says:

It appears to me that the objective that all concerned had at the material time was, indeed, to strive to succeed in delivering appropriate provision for gypsy sites, and it appears to me appropriate to bear in mind the context which Mr Daniels describes. At paragraph 27, Mr Daniels describes the different experiences, in particular as to demand in each of the four defendants' areas, and he continues with that description over the ensuing paragraphs. At paragraph 31 he notes this:

The relevance of that evidence before the court is not that it was in being at the time that R21 was written, but rather as providing helpful background to the history which is part of the context within which, it was common ground R21 is properly to be construed. It is unlikely, in my view, that the Panel would have intended to recommend that there should be a rigid approach requiring identification on a site specific basis in the local plans, where experience in at least one of the defendant's areas was that they had simply been unable to identify further sites to meet need.

My conclusion as to the interpretation which it was reasonably open to the defendants to reach in relation to R21 is also supported by the fact that what regulation 15(4) focuses on, as I have emphasised in the quotations from it above, is the "intention" of the relevant planning authority. Intention is usually regarded in law as a subjective concept. It is difficult to see how the defendants could be said to have intended to depart from R21 when they considered that they were not doing so, unless their subjective view was irrational. But for the reasons I have already given, I do not consider that their subjective view was irrational. Accordingly, in my judgment, the procedural obligations imposed by regulation 15(4) have not been breached in this case.

In the light of that conclusion on the first issue, it is strictly unnecessary to address the other issues. However, I heard full argument on them, and I will briefly deal with them in case I am wrong on the first issue.

Even if I had concluded that there had been a breach of regulation 15(4), I would not have quashed the Structure Plan as a whole. My reasons are as follows:

I can deal with this issue briefly. If I had concluded that there had been a breach of regulation 15(4), I would have exercised my discretion to quash Policy 37. It seems to me that a quashing order will normally be made if a procedural requirement has been breached, and the claimant has been substantially prejudiced. No authority to the contrary was cited. It was not suggested to me that, if there had been a breach of regulation 15(4), the claimant in this case was not substantially prejudiced. Although, even then, I accept that the court retains a discretion not to quash the relevant part of a plan, it seems to me that in the circumstances of this case, the just outcome would have been to quash Policy 37, in the expectation that it would be reconsidered in accordance with a lawful procedure. In my judgment, this would not have caused great inconvenience to the defendants, and certainly their evidence did not seek to persuade me that it would; and it would have vindicated the rule of law.

In his skeleton argument, Mr Jones advanced an argument based on natural justice. However, in oral argument he accepted that the rules of natural justice added nothing in the present case to the express procedural requirements of regulation 15(4). Accordingly, I need say no more about that argument.

Also in his skeleton argument, Mr Jones alluded to suggested breaches of the Race Relations Act 1976, as amended, and the Human Rights Act 1998. Although these were developed a little more in oral submission, Mr Jones said that they went to the question of the appropriate remedy. Since I have found that there was no breach of regulation 15(4) in the first place, and since I did not hear full argument from the parties, in particular by Ms Lieven for the defendants, it seems inappropriate to me to pronounce on arguments which are potentially very far reaching in relation to the Race Relations Act and the Human Rights Act. Since it is not necessary to do so in this case, I will not embark on that exercise.

For the reasons I have given, this application is refused.

MR JONES: My Lord, I apply for leave to appeal. I dealt with the matters of law in my submissions, and there is nothing I can add to that. I can deal with the importance of the issue, if it helps. Your Lordship heard in the submission of breaches of law, initially in the form of section 6 of the Caravan Sites Act 1968, and subsequently a policy in the form of Circular 1/94 by the defendants and their predecessors. The severe consequences of this, for a most underprivileged minority, are perhaps obvious, but they include denial of education, poor health, the highest infant mortality of any minority group in the country, the lowest life expectancy of any minority group in the country, and the highest morbidity rate of any minority group in the country. The practical consequences of your Lordship's judgment, if it turns out  practical consequences in any event, my Lord, are that matters will continue just as before. There will be no change whatsoever, and we see that from the emerging policies in the local plan and, in at least one case, the wrongful suffering of this minority will, it is anticipated by the defendant, continue for decades. My Lord, it is, therefore, a most important issue and, in my submission, it is appropriate for the issues of law to be heard by the Court of Appeal.

Certainly, in 1993 the Minister for Planning indicated the predecessor of this authority was a particularly bad offender, and perhaps came close to saying it was the worst in the country. Of course, time has passed, and we do not have comparative figures before you as to the situation with other authorities today. But you have heard evidence which indicates that things have not got better in Avon since then. So, in broad terms there is not much difference. For those reasons, I would submit it is appropriate for the matter of law to go to the Court of Appeal.

THE DEPUTY JUDGE: Thank you. Miss Lieven?

MS LIEVEN: My Lord, I was hesitating (inaudible) I should make clear. As I understand it, my learned friend's client is legally aided, and in those circumstances I am instructed not to apply for the costs.

THE DEPUTY JUDGE: So, if we just deal with costs first. I am assuming for the moment there is a certificate on the court file?

MR JONES: I assume it is on the court file.

THE DEPUTY JUDGE: If not, you can give the usual undertaking to file it within seven days.

MR JONES: It must be filed, and I can give that undertaking.

THE DEPUTY JUDGE: Within seven days. Subject to that procedural step just being checked, I will make no order as to costs, save for public funding assessment.

MR JONES: I am grateful.

THE DEPUTY JUDGE: Now, in relation to permission to appeal.

MS LIEVEN: My Lord, on the two tests, first of all as to whether or not there is a reasonable chance of success --

THE DEPUTY JUDGE: A real prospect of success.

MS LIEVEN: I am not seeking to quote my Lord, I am sorry. Your Lordship found against the claimant entirely on the basis of what was a reasonable interpretation of R21. Now, my Lord, in my submission there is no real prospect of the Court of Appeal coming to a different interpretation. Your Lordship has set out the basis for it, and once one accepts that it is a question of reasonable interpretation, which, in my submission, it must be, then there is no reasonable prospect for the Court of Appeal to take a different view.

In terms of whether there is a point of general importance -- again, I do not seek to paraphrase the White Book, but the general principle of the second limb. My Lord, the case turns entirely on its particular fact, because it turns entirely on the interpretation of the words in R21 and the reasons behind them. It has no impact on any (inaudible) and as far as the points my learned friend makes about the general importance to his client and to other gypsies in what was the Avon area, my Lord, as I said in submissions yesterday, all the points that are raised before your Lordship as to the merits and as to the allegation in some report that my clients were bad offenders in the past, those are all points that can be taken through the local plan process, and all local plan enquiries. And indeed, in my submission, that is the appropriate point to take them, because it is the local plan process where Green Belt land was, in fact, the principal thrust of my learned friend's client's arguments (inaudible) can be amended. Those points of wider significance are not really appropriate ones for the Court of Appeal at all, and really can be put on merits through the planning process. So, my Lord, in my submission, neither test is met here.

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

MR JONES: Only briefly on that last point. My Lord, underlying that is an assumption that gypsies have the resources of the House Builders Federation and the (inaudible) industry, and can put their case before local plan enquires. The majority of gypsies are still illiterate, and are (inaudible) in a position to have no public funding. They are just not in the same position as organised, well-funded bodies who have.

THE DEPUTY JUDGE: Thank you.

MS LIEVEN: My Lord, can I just make a very brief point? I do not wish in the slightest to sound unsympathetic, but it is plainly standard for gypsies to be represented at enquires and local planning enquires through various interest groups. I am not suggesting that Mrs Butler should necessarily turn up herself.

THE DEPUTY JUDGE: I will refuse permission to appeal in this case. My reasons are briefly that firstly in relation to regulation 15(4), I have reached a clear view. I consider that there is no real prospect of success in an appeal on a point of law. I may be wrong about that, but the Court of Appeal will grant permission if that is so.  Secondly, in any event I would have refused to quash the plan in its entirety as matter of my discretion, and no one has sought to persuade me, nor do I think, that there would be any arguable error of law in the exercise of discretion. Thirdly, so far as the more general importance of the case is concerned, I accept Ms Lieven's submission that this case has entirely turned on the particular facts, and in my view, at least, it does not raise issues of a more general importance. But again, if I am wrong about that, then, of course, the claimant may be able to persuade the Court of Appeal to grant permission to appeal. Thank you both very much.