Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MICHAEL KAY QC
(Sitting as a Deputy Judge of the High Court)
Between:
THE QUEEN ON THE APPLICATION OF ROONEY
Claimant
v
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
Defendant
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Mr A Masters (instructed by Bramwell Browne Solicitors) appeared on behalf of the Claimant
Mr R Ward (instructed by Treasury Solicitor) appeared on behalf of the Defendant
J U D G M E N T
THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990.
The applicant seeks the quashing of a decision set out in a letter of Mr Clive Hughes dated 30th November 2009. Mr Hughes is an inspector who held an inquiry between the 27th and 30th October 2009 in relation to a site at Willow Farm, Chobham Road, Ottershaw, Surrey. There had been an application for planning permission for the stationing of caravans or mobile homes, a utility room and a hard standing area on this site. That application had been refused by the Runnymede Borough Council on 23rd April 2009.
The proposed development is in the Green Belt. The claimants, Mrs Rooney and various members of the Rooney family, occupied that site. There were I think four families in all on that site. Its authorised use appears to be livestock farming. The inspector upheld the local authority's decision not to issue a lawful development certificate.
The challenge relates, in the large part, to a comparison between the inspector's decision in relation to this site and his decision, only a matter of weeks earlier, in relation to a site at Red Cottage, Lynn, Virginia Water in Surrey. That too had been an application in Green Belt land for a change of use to a residential caravan site for six gipsy families. In that case Mr Hughes had found that very special circumstances did exist and he concluded that the harm of the development to the Green Belt was outweighed by other considerations. He concluded that permanent albeit personal planning permission should be granted.
Mr Masters, who appears for the claimant, submits that the inspector has failed to act consistently and has failed either at all or properly to identify any differences between the grounds of the decision in the Red Cottage case and the grounds of the decision in this case. He also, as a somewhat subsidiary point, as I understood it, submits that even looked at on its own, this decision can be challenged because of the failure by the inspector to deal with the local council's failure to identify suitable sites for gipsies and travellers in accordance with the ODPM Circular 01/2006.
I start with certain well-known propositions of law. In the case of R (On the application of Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWCA High Court Admin 74 Sullivan J (as he then was) set out the limits of section 288 challenges. I cite this not because there is any dispute about it but because it sets out the background against which I have to exercise judgment. In that case Sullivan J said as follows:
An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.
In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments... Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task."
I think Mr Masters might say that he is not as such arguing that the conclusion is Wednesbury unreasonable or perverse, but that he is relying on the principle of consistency as his main ground of challenge.
The question of consistency was considered in North Wiltshire DC v SSE (1993) 65 P&CR page 137. What was said there was that if there is going to be departure from the principle of consistency, whereby like cases should be decided in a like manner, the inspector must recognise the importance of giving reasons for the departure. Mann LJ stated as follows:
"One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision."
Mr Masters took me to the Planning Policy Guidance in relation to Green Belts and also to the ODPM Circular 01/2006 to which I have referred. In particular, he referred me to paragraph 12 of the ODPM Circular. It is stated there that the main intentions are, I summarise, to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause, to increase significantly the number of gipsy and traveller sites in appropriate locations, to address under provision over the next 3 to 5 years, that is by February 2011, and to help to avoid gipsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to. Those are but three of the intentions; there are a number of others which were not deemed to be material for reference in this case.
The transitional arrangements are set out at page 43 of the Circular. They provide that local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers on completion on GTAAs. Again to summarise, the Circular is indicating that local planning authorities had to take steps to identify appropriate sites for gipsies and travellers within the 5-year time scale. There is no dispute in this case that the local authority, Runneymede Borough Council, had not done so by the date of this decision and were not likely to do so until somewhere in 2012 or 2013 or thereabouts.
The Circular refers to the question of the Green Belt. It repeats the general presumption against inappropriate development within Green Belts. It says that new gipsy and traveller sites in the Green Belt are normally inappropriate development, as defined in Planning Policy Guidance to Green Belts. National Planning Policy on Green Belts applies equally to applications for planning permission from gipsies and travellers and therefore alternatives should be sought.
Green Belt land, of course, is part of the rural setting. Paragraph 54 addresses rural settings. It indicates that sites may be found in rural or semi-rural settings and that they are acceptable in principle. There is in that sense a distinction between a plain rural setting simpliciter, which in principle is acceptable for a gipsy or traveller site, and Green Belt land where the presumption remains that such developments are normally inappropriate. There is reference also in the Circular to the question of Human Rights and in particular, of course, Article 8 of the Convention arises whenever the question of travellers and sites is being considered.
So the starting position in relation to Green Belt land is that any development is inappropriate and that factor should be given significant weight as a material consideration in the balancing exercise which an inspector has to carry out. He also has to consider whether there is any other harm and whether there are material considerations which outweigh such harm.
Mr Masters also directed me to PPG2 on Green Belts. There is set out in that document the purposes of Green Belts which include openness. Questions of encroachment and visual amenity are also referred to at paragraph 3.15. Those are obviously material considerations. He then referred me to a decision of His Honour Judge Gilbart QC in the case of Theo Langton and Ruth Magill v Secretary of State Communities and Local Government [2008] EWCA High Court 3256 Admin. He referred me to paragraph 33 of that decision. At paragraph 32 the judge indicated that the inspector had to ask himself a number of questions. Was there a need for pitches? Was there any available alternative provision? Was there a reasonable expectation that any new sites were likely to become available at the end of the period that would meet that need? At paragraph 33 the judge went on to say:
"The case against the development being advanced by the council which relied on its own failure to advance government policy on the identification of pitches is a significantly weaker one than a case advanced by an authority which is doing what it can to identify provision but which faces constraint in the form of infrastructures and Green Belts and so on."
Mr Masters relied upon that passage because Runnymede Borough Council, he said, was relying on its own failure to advance the relevant government policy. That point was raised again in paragraph 40 of the Langton decision, where the judge noted that, in the case before him, the decision maker had not addressed himself to the important question of the effect of a conclusion that the local authority had failed to comply with national and regional policy on the identification of sites to meet an identified need.
Finally, in this context, Mr Masters referred me to the case of R (On the application of Doncaster Metropolitan Borough Council) v Secretary of State and Angela Smith, a decision of Mr Bartlett QC. There does not appear to be a citation. This was decided on 19th February 2007. He did so for one purpose only, which was to draw my attention to how another inspector in a case concerning sites for gipsies and travellers had taken into account, in the balancing exercise, the limited progress made by the council in that case in undertaking their responsibilities with regard to the assessment of the accommodation needs of gipsies and travellers and the identification of suitable sites.
So I turn then, against that background of the legal principles, to the issues in this case. It seems to me when one is looking at the question of consistency between the two decisions, that the most important paragraph in Mr Hughes' decision is paragraph 53. In that paragraph he states as follows:
"I have taken into account all the various other decisions and judgments that were put forward. I have also had particular regard to the recent planning appeal decision at Red Cottage that was referred to extensively at the Inquiry. I consider that the circumstances of this case differ materially from the Red Cottage site. There are significant and material differences concerning the impact on the Green Belt, the impact on both the character and appearance of the area, and in the personal circumstances of the respective appellants. In both cases the decisions have been the result of a balance between the conflict with policy and the other material considerations. In this case I conclude that the identified harm is not clearly outweighed by the other material considerations."
He dismissed the appeal.
The decision made by Mr Hughes in the Red Cottage application was indeed extensively referred to by Mr Masters who appeared before the inspector. His closing submissions are in front of me and it is quite plain that he referred to that decision. He referred also to the unmet need for traveller sites and to the fact that the local authority had not complied with the policy to identify such sites within 5 years. I have no doubt that the inspector here was well aware of those submissions and was well aware that he had made a decision in the Red Cottage case which, if he was going to depart from it, he would have to identify what differences there were. This, it seems to me, he does in paragraph 53.
The question therefore is whether those are sufficient differences to merit his conclusion or, perhaps, whether reliance on those differences as he has identified in order to reach a different conclusion is perverse.
There is no doubt, on the authorities, that two different inspectors, let alone the same inspector, can come to different views in broadly similar circumstances. Of course if the circumstances are exactly the same, which perhaps will never be the case, the principle of consistency is that they would have to reach the same decision. It seems to me that Mr Hughes must have been and was well aware of that point.
The three areas of differentiation he identified I will now consider. The first one is the impact on the Green Belt. It was of course accepted in both the Red Cottage and the Willow Farm applications that this development constituted inappropriate development in the Green Belt. No other position could be taken. It was also a consequence of that position that significant weight had to be attributed to the Green Belt harm. The word used is actually "substantial" weight. It appears that there is no real option, in accordance with guidance, but to take such a stance. It does not seem to me that because that is the stance that has to be taken, there cannot be differences in scale at different sites as to the effect on the Green Belt.
In the present decision Mr Hughes' conclusion which is expressed at paragraph 17 is this:
"Overall, taking account of the totality of the development proposed including the fencing and retaining structure and the scale of the buildings to be removed, there would undoubtedly be a significant loss of openness to the Green Belt."
I should point out that Mr Hughes visited the site on 29th October 2009, a point referred to by Sullivan J as an important factor in the Newsmith case. He had also visited the Red Cottage site. When he considered Green Belt matters and openness in that case, he did not reach the conclusion that there was a significant loss of openness; he decides that there was a loss of openness but not one that is significant.
The second consideration identified in paragraph 53 of the decision is the impact on both the character and appearance of the area. In the present decision Mr Hughes' reasoning is set out in paragraphs 12 and 13. He states that the development proposed involves residential use that is seriously at odds with the character of this predominantly rural area. He points out that development would be on the highest part of the site and that the overall increase in the number and spread of structures on the site would be harmful to the appearance of the area. At paragraph 15 he refers to the effect on the visual amenities of the Green Belt and the advice in PPG2 which is that visual amenities should not be injured by proposals within the Green Belt. Mr Masters says that is a fundamental flaw in the reasoning because it is an introduction of Green Belt policy into consideration of the effect of the development on the character and appearance of the area. The area is a rural one and Mr Masters points out that such a development in a rural area is in principle acceptable.
It seems to me, reading this decision, that this is not the introduction of PPG2 for the purposes of it governing the decision or view he was to take about the character and appearance of the area. It is simply a reference to the fact that when one is dealing with Green Belt land, there is reference in PPG2 to the question of visual amenity. His conclusion is the development that is proposed would result in significant harm to the character of the area and localised harm to the appearance of the area. In the Red Cottage decision those were not his findings. In paragraphs 11 and 12 of that decision, he analyses the site lines of the proposed development in that case and comes to a different view as to the effect on the character and appearance of the area. In paragraph 13 he states his conclusion that there is some localised harm to the character and appearance of the area but the harm is limited as there is only a single public view point. For the reasons he sets out he says that only carries limited weight.
Again, therefore, it seems to me that this inspector, who has visited both sites, has come to a different conclusion about the effect on the character and appearance of the area. It seems to me that that different conclusion is sufficiently explained in the paragraphs of the decision to which I have made reference. It also seems to me that it was open to the inspector to come to such conclusions. This is because, as I warned myself at the beginning of this judgment by citing the decision of Sullivan J in the Newsmith case, a court should be very wary of re-opening the merits of the planning decision. I would not wish to do so and I do not accept the submission that there is no material difference between the conclusion and the reasoning as regards the two decisions.
The third difference in material considerations between the two decisions is that of personal circumstances. The consideration of personal circumstances in this decision is set out in paragraphs 37 to 44. The inspector considered, as he was bound to do, not least under Article 8, the family life and private life of those who occupied the site. That is all set out in his decision.
His conclusion with regard to the family considerations is that he gives them only limited weight. He says the applicants have not lived together as a group for very long and many of those living on the site had moved onto the site since the appeals against the enforcement notices were dismissed. The evidence was that various other site residents had come and gone over the years.
There are different considerations in personal circumstances in the Red Cottage case. Those are set out in paragraphs 29 to 33. That group of travellers had been in the area for over 20 years and had family connections within the area and were running businesses for very many years in that area. That, it seems to me, was an entirely legitimate consideration for the inspector to take into account. So again, there are differences in the considerations in the two cases which are, in my judgment, legitimate for an inspector to take into account.
The inspector was carrying out a balancing exercise in both cases. There is no complaint from the claimant that he did not do so. The claimant says that apart from one matter the inspector took into account all of the relevant material considerations that he ought to have taken into account. That one matter is said to be the counsel's failure of policy in relation to the identification of sites.
It does not seem to me that such a failure of itself would be a sufficient ground for overturning this decision. This was an inspector who was well aware of the position in relation to this council and within his decision, he refers to the unmet local need for traveller sites. In particular, at paragraph 36 of his decision, he considered that there was still a significant level of need for traveller sites. He pointed out there was no realistic prospect of sites becoming available pursuant to the DPD process in the foreseeable future as the DPD is not expected to be adopted until 2012. He points out that in the Red Cottage appeal the date was given as 2013. He points out it will take some further time before those sites have the benefit of planning permission and realistically, he concludes, it will be at least 4 years before sites will become available for occupation. In the meantime the need for sites, he says, remains unmet. This weighs heavily in favour of the appellant.
So I do not accept the submission that this inspector did not have in mind the need for sites, the fact that it was unmet and the fact that the council had failed to meet the need within the time guidelines of the ODPM Circular.
For all those reasons therefore, I find against the claimant and dismiss this application.
THE DEPUTY JUDGE: Yes?
MR WARD: My Lord, I rise to make an application for costs in the sum identified in the schedule of costs I am handing up now and was supplied to the claimant yesterday. The total figure is £6,976. I am not aware of any response having been made in relation to it.
THE DEPUTY JUDGE: Do you want me to assess this then. First of all the principle of it?
MR WARD: Indeed.
THE DEPUTY JUDGE: Then the amount.
MR WARD: In relation to both of those two, I do not know whether either is challenged by the claimant.
THE DEPUTY JUDGE: Is the principle challenged?
MR MASTERS: My Lord, two things. The principle is not challenged. Certainly we are legally aided. Thirdly, I do not think this was served in 24 hours because according to my instructing solicitors it was faxed at 4 o'clock. We have not reached that time yet. In any event -- it is a silly point -- obviously there is legal aid and obviously the relevant rules. I have no doubt that the calculations made will be acceptable to my Lord.
THE DEPUTY JUDGE: Well, I am not persuaded by the amount of hours on documents I have to say.
MR MASTERS: I am grateful. Whenever I try to pursue some of these things it becomes a bit messy.
THE DEPUTY JUDGE: Perhaps I am quite used to looking at these sorts of things may be more than the average High Court judge. The one area which seems to me to be surprising is the work on documents.
MR WARD: 13.8.
THE DEPUTY JUDGE: It is not, it is more than that, it is over 17 hours.
MR WARD: I am instructed that the reason for that is that the Treasury Solicitors provided its own written advice at point and that took a number of hours to produce.
THE DEPUTY JUDGE: Why such a big fee for advice, conference and documents from counsel then, which curiously is also £2,000? You cannot have it both ways.
MR WARD: You will see that are two sets of counsel involved.
THE DEPUTY JUDGE: Yes. But the fee for the hearing is very modest, if I may say so. But the fee for advice, conference, documents is quite large, if indeed most of the work was done by a Treasury Solicitor.
MR WARD: The advice conference documents was following an initial written advice. There was a subsequent advice; there was the drafting of skeleton argument and then there was ongoing procedural advice that was given arising, for example, out of the fact that the skeleton argument from the claimant arrived on Friday afternoon and some discussion about what to do in the event that it was not received in time.
THE DEPUTY JUDGE: This is a rough and ready assessment which is what you can expect and in my rough and ready assessment I would knock £2,000 off this.
MR WARD: £4976.
MR MASTERS: I concur with my Lord.
THE DEPUTY JUDGE: £4976. So the claimant to pay defendant's cost, summarily assessed at £4976. What is the current wording for -- it used be "not to be enforced". What is the current wording for that order?
MR MASTERS: I was hoping your Lordship was going to tell me. That wording if it has changed, forgive me I am not aware.
THE DEPUTY JUDGE: It has not changed.
MR MASTERS: I did not think it had but I thought your Lordship was going to catch me out or something.
THE DEPUTY JUDGE: Not to be enforced without--
MR MASTERS: I do not want to take a bad point my Lord, the skeleton was faxed by me on Thursday morning but--
THE DEPUTY JUDGE: I have knocked quite a bit off.
MR MASTERS: I am grateful. I will explain the reasons for that (inaudible). My Lord, I would seek leave to appeal, which I think.
THE DEPUTY JUDGE: Not to be enforced without permission of court. Do you whatever the current version of the order is for legal aid?
MR MASTERS: Yes please.
THE DEPUTY JUDGE: I am sure my Associate will know. Do you know it?
MR MASTERS: My Lord I thought it was just an order for legal aid. I am not sure I do. Do you know the current wording for you know. I am sure the Associate--
THE DEPUTY JUDGE: Whatever the current wording is, assessment of public funding of claimant's costs. There is a wording for it which I cannot remember. You want permission appeal, do you?
MR MASTERS: My Lord, I want to consider it. I will Look very carefully at what you have said. It seems to me, I am sorry whatever the words are now, I have to sort of almost launch into a criticism.
THE DEPUTY JUDGE: I am well used to people at the end saying: you got it wrong.
MR MASTERS: My Lord I do not challenge your analysis of the part of the three consistencies but I say that the failure to take on board his finding on proportionately within the Virginia Cottage case in terms of that there is significant. There is no explanation of that and that is my ground. I know my Lord did not agree with me, for the reasons you said, but it would found my ground should I advise in due course that be appropriate. I am not suggesting I have formally made that decision. I need ask you for your leave now.
THE DEPUTY JUDGE: I understand. I refuse permission to appeal because for the reasons I have given, it seems to me there is not an arguable case on appeal.
MR MASTERS: I am grateful to my Lord. My Lord, may I again apologise for the errors with the bundles today and I am grateful for you being so good humoured about it.
THE DEPUTY JUDGE: Do not worry about it.