Murphy v Secretary of State for Communities & Local Government & Anor

The Claimants, Ms Kathleen Murphy and Mrs Hannah Doran, are members of the Irish Travellers community. They occupy pitches on sites in different parts of the UK and each has been affected by separate adverse planning decisions made by the Secretary of State in “recovered” appeals. The appeals involved Green Belt considerations and each was “recovered” by the Secretary of State for that reason. There is, of course, a general presumption against inappropriate development in the Green Belt, with the need for “very special circumstances” to arise for such development to be permitted within the Green Belt. It is not in issue that the development involved in each case constituted “inappropriate” development for this purpose.

The relevant decision letters on the appeals were each dated 9 December 2010.

Each claimant applies under s. 288 of the Town and Country Planning Act 1990 (“the TCPA 1990”) to quash the decisions thus made. Ms Murphy also seeks to appeal under s. 289 of the Act against the Secretary of State’s dismissal of an appeal to him in respect of an enforcement notice relating to the land in question. For that she needs an extension of time for seeking the leave of the court and, of course, the leave of the court itself. An issue arises as to her standing in respect of that proposed appeal (see paragraph 102-105 below).

There is a common thread to each application which made it convenient for them to be heard together. The common thread arises from the purported revocation on 6 July 2010 by the Secretary of State of all Regional Spatial Strategies (‘RSSs’), including those making provision for gypsy and traveller sites and his announcement on 29 August 2010 of his intention to withdraw the then current national planning guidance for gypsy and traveller sites set out in Circular 01/2006 (see paragraph 4 below). These matters reflected the changed policy of the Coalition Government after the General Election in May 2010 towards the planning process and, as part of that process, for the provision of gypsy and traveller sites.

Prior to the announcements in 2010 (see paragraph 4 above and paragraphs 9-13 below), the extant planning guidance for gypsy and traveller sites was set out in ‘ODPM Circular 01/2006: Planning for Gypsy and Traveller Caravan Sites’ (‘Circular 01/2006’) issued on 2 February 2006.

Circular 01/2006 replaced ‘Circular 1/94, Gypsy Sites and Planning’ on the basis that the latter had “failed to deliver adequate sites for gypsies and travellers in many areas of England over the last 10 years.” The Circular said this:

“Gypsies and Travellers are believed to experience the worst health and education status of any disadvantaged group in England. Research has consistently confirmed the link between the lack of good quality sites for gypsies and travellers and poor health and education. This circular should enhance the health and education outcomes of gypsies and travellers.”

In a nutshell the planning process contemplated in the 2006 Circular involved effectively three stages though each was interlinked. The first involved local authorities undertaking an assessment of gypsy and traveller accommodation needs as part of what was described as the gypsy and traveller accommodation assessment (‘GTAA’) process. The purpose of this part of the process was to identify pitch requirements for each local authority area. That process was intended to “inform the preparation of Development Plan Documents (DPDs)”. The next stage in the process was the consideration of the GTAA by the Regional Planning Board (‘RPB’) in order to check or modify the pitch numbers arising from GTAAs from a regional perspective. The RPB was responsible for producing (or, where appropriate, revising) a Regional Spatial Strategy which then identified the number of pitches required (but not their location) for each local planning authority in the light of the GTAAs and a strategic view of needs across the region. The number of pitches set out in the RSS was then translated into specific site allocations in one of the local planning authority’s DPDs that formed part of the Local Development Framework (‘LDF’). The DPDs were then subject to an examination in public.

This process was effective from the time of the promulgation of the Circular, but transitional provisions were set in place to provide for the period until the process had run its course in any particular local authority area: see paragraphs 41-46 of the Circular.

On 20 May 2010, the Coalition Government stated that it would “rapidly abolish Regional Spatial Strategies and return decision-making powers on housing and planning to local councils …”: see paragraph 10 of the judgment of Sales J in Cala Homes (South) Limited v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin). This case has become known as ‘Cala Homes (No. 1).’

That statement was followed by a letter from the Secretary of State for Communities and Local Government to each local planning authority dated 27 May 2010 in which he said this:

“I am writing to you today to highlight our commitment in the coalition agreements where we very clearly set out our intention to rapidly abolish Regional Strategies and return decision making powers on housing and planning to local councils. Consequently, decisions on housing supply (including the provision of travellers’ sites) will rest with Local Planning Authorities without the framework of regional numbers and plans.

I will make a formal announcement on this matter soon. However, I expect Local Planning Authorities and the Planning Inspectorate to have regard to this letter as a material planning consideration in any decisions they are currently taking.” (Emphasis added.)

The formal announcement foreshadowed in this letter was made in Parliament on 6 July 2010 by the Secretary of State. It is set out in full in paragraph 13 of Cala Homes (No. 1). However, its intention was to revoke RSSs immediately as is shown by this paragraph from the letter:

“The abolition of Regional Strategies will require legislation in the “Localism Bill” which we are introducing this session. However, given the clear coalition commitment, it is important to avoid a period of uncertainty over planning policy, until the legislation is enacted. So I am revoking Regional Strategies today in order to give clarity to builders, developers and planners.”

This purported revocation of the RSSs was challenged in Cala Homes (No. 1) and, for the reasons given in the judgment of Sales J on 10 November 2010, the purported revocation was quashed. I will return to the position following that decision below (see paragraphs 14-18).

In the meantime, in the specific context of planning guidance for gypsy and traveller sites, the Secretary of State announced on 29 August 2010 the Government’s intention to withdraw the existing planning guidance for gypsy and traveller sites and travelling showpeople, set out in Circulars 01/2006 and 04/2007 respectively, and to replace it with what was described as “a single slimmed down, light-touch Planning Policy Statement (PPS) for traveller sites, as part of the intended planning reforms.”

When the judgment in Cala Homes (No. 1) was handed down, the Secretary of State (who did not appeal against the decision) issued a statement in the following terms:

“On 6 July 2010, the Coalition Government revoked all regional strategies under section 79(6) of [the 2009 Act]. This action was challenged in the High Court by developer Cala Homes, and the decision today concluded that Section 79 powers could not be used to revoke all Regional Strategies in their entirety.

While respecting the court’s decision this ruling changes very little. Later this month, the Coalition Government will be introducing the Localism Bill to Parliament, which will sweep away the last Government’s controversial regional strategies. It is clear that top-down targets do not build homes – they have just led to the lowest peacetime house building rates since 1924, and have fuelled resentment in the planning process that has slowed everything down.

On 27 May 2010, the Government wrote to local planning authorities and to the Planning Inspectorate informing them of the Coalition Government’s intention to rapidly abolish regional strategies and setting out its expectation that the letter should be taken into account as a material planning consideration in any decisions they were currently taking. That advice still stands.

Today the Government’s Chief Planner has written to all local planning authorities and the Planning Inspectorate confirming that they should have regard to this material consideration in any decisions they are currently taking.

Moreover, to illustrate the clear policy direction of the Coalition Government, the proposed clause of the Localism Bill that will enact our commitment to abolish regional strategies is being placed in the Library.

The Bill is expected to begin its passage through Parliament before Christmas.

We are determined to return decision-making powers in housing and planning to local authorities and the communities they serve, alongside powerful incentives so that people see the benefits of building. We will very shortly provide more details about one of the most important such incentives – the New Homes Bonus Scheme, which will come into effect from April. This means that new homes delivered now will be rewarded under the scheme.

The Coalition Government remains firmly resolved to scrap the last Government’s imposition of confusing and bureaucratic red tape. This was a clear commitment made in the Coalition Agreement and in the general election manifestoes of both Coalition parties. We intend to deliver on it.”

That statement referred to a letter from the Government’s Chief Planner, the material parts of which were in the following terms:

“ABOLITION OF REGIONAL STRATEGIES

I am writing to you today following the judgment in the case brought by Cala Homes in the High Court, which considered that the powers set out in section 79[6] of [the 2009 Act] could not be used to revoke all Regional Strategies in their entirety.

The effect of this decision is to re-establish Regional Strategies as part of the development plan. However, the Secretary of State wrote to Local Planning Authorities and to the Planning Inspectorate on 27 May 2010 informing them of the Government’s intention to abolish Regional Strategies in the Localism Bill and that he expected them to have regard to this as a material consideration in planning decisions.

I am attaching the proposed clause of the Localism Bill that will enact that commitment. The Bill is expected to begin its passage through Parliament before Christmas, and will return decision-making powers in housing and planning to local authorities. Local Planning Authorities and the Planning Inspectorate should still have regard to the letter of the 27 May 2010 in any decisions they are currently taking….”

Cala Homes challenged the statement and the letter in proceedings that were heard at first instance by Lindblom J in January 2011 (Cala Homes (South) Limited v. Secretary of State for Communities & Local Government and Winchester City Council [2011] EWHC 97 (Admin) - judgment handed down on 7 February 2011) and in the Court of Appeal in May 2011 with the judgment handed down on 27 May 2011: [2011] EWCA Civ 639. This has become known as ‘Cala Homes (No. 2).’ The Court of Appeal confirmed the decision of Lindblom J that the statement of the Secretary of State saying that the intention to abolish Regional Strategies in the Localism Bill should be treated as a material consideration in planning decisions was lawful. Sullivan LJ (with whom Rix and Rimer LJJ agreed) concluded his judgment in this way:

“[Counsel for Cala Homes] submitted that if the proposed abolition was a material consideration it would be irrational to give it any weight at this stage. However, [Counsel for the Secretary of State’s] submissions have persuaded me that where the issue is one of weight rather than materiality, “never say never” is the appropriate response to a submission that, as a matter of law, any decision-maker in any case would be bound to give no significant weight to a potentially material factor. [Counsel for the Secretary of State] fairly acknowledged that even within the minority of cases in which the proposed abolition of regional strategies will be relevant, there may well be very few cases in which it would be appropriate at this stage of the Parliamentary and SEA process to give any significant weight to the proposal. But the Chief Planner’s letter is concerned with the whole of the period prior to the enactment of the Localism Bill (if it is enacted), and the position will change as it progresses, or fails to progress. Even now there might be finely balanced cases where the very slight prospect of a very substantial policy change might just tip the balance in favour of granting or refusing planning permission. [Counsel for the Secretary of State] gave the hypothetical example of a large-scale residential proposal (which he referred to as a “new town”, but the point would equally apply to a proposed extension of an existing settlement), which is proposed to be developed over the next 15-20 years, to which there are very strong site-specific objections, and where the sole justification for granting planning permission is the need to meet the requirement for residential development over the next 20 years in the regional strategy. In such a case it would not be irrational for the decision maker to give some weight to the prospect, however uncertain, that the regional policy justification for granting permission for such a long-term proposal may cease to exist within the short term. In such a case, to give even very little weight to the prospect of a change in policy might be to give that factor “significant” weight, significant in the sense that it might tip the balance in favour of refusing permission. This hypothetical example may well be an extreme case, but it does illustrate why it would not be safe for the Court to assume that at this stage there are no circumstances in which any decision-maker could rationally give some weight to the proposed abolition of regional strategies. In view of the uncertainty created by the legal obstacles referred to above … any [decision-maker] who does think it appropriate to give some weight to the Government’s proposal when determining an application or an appeal would be well-advised to give very clear and cogent reasons for reaching that conclusion, but that does not mean that there could be no case whatsoever in which any decision-maker might be able to give such reasons.”

That judgment was given several months after the Secretary of State’s decisions on the appeals in the two cases before me.

Simply for completeness, it should be noted that the Localism Bill did indeed in due course became the Localism Act, receiving Royal Assent on 15 November 2011. A staged process of implementation of the various provisions of the Act has been undertaken subsequently.

That is a brief sketch of the material events in the planning and legal journey since May 2010. Features of what occurred during this journey continue to reverberate: cf. The Queen on the application of Stevenage Borough Council v Secretary of State for Communities and Local Government [2011] EWHC 3136 (Admin).

How is it said that features of that journey affect the two cases before me?

The site where Ms Murphy resided was a parcel of land at Hemley Hill, immediately to the north-west of Upper Icknield Way in countryside about 1 km to the south of Princes Risborough, Buckinghamshire. It lies within the Metropolitan Green Belt and also within the Chilterns Area of Outstanding Natural Beauty (‘AONB’). The site is roughly rectangular with an area of about 120 metres by 65 metres and was formerly part of a large agricultural field on a hillside slope rising to the south-west.

I will deal with the ownership of the site later (see paragraph 103), but those on the site, in addition to Ms Murphy, were another 8 people, one of whom was her 25-year old daughter, Margaret, who sadly is blind and has been diagnosed with a brain tumour. She is being treated at Stoke Mandeville Hospital with drug therapy. She needs full-time care. These various people occupied 9 plots within the site.

The local planning authority is Wycombe District Council. The site owner, Mr Patrick Hanrahan, on 1 May 2009, applied for planning permission seeking a change of use for the site “to include the stationing of caravans for 9 … gypsy pitches with utility/day room buildings and hard-standing ancillary to that use.” By the date when the application was made the site was already partially occupied residentially with the majority of the site surrounded by timber screen fencing. The application was refused by notice dated 13 November 2009. In the meantime, on 2 September 2009, an enforcement notice was issued alleging that without planning permission there had been a material change of use of the land to use as it as a gypsy and traveller caravan site with “associated enabling development including the erection of fences and the laying of hard surfaces to facilitate that use.” Mr Hanrahan appealed against the refusal of planning permission and the enforcement notice, the essential ground of appeal being that planning permission ought to be granted.

An Inspector, Mr Alan Upward, BA (Hons), MCD, MRTPI, held a public local inquiry on 13 – 16 July 2010 and 16 August 2010 and in a report dated 5 October 2010 recommended the dismissal of both appeals.

As will be apparent, at the time of the public inquiry the Secretary of State’s purported revocation of the RSSs had been effected, but had not yet been set aside by the court. Indeed it had not been set aside by the date of the Inspector’s report. It had, however, been set aside by the time of the Secretary of State’s decision letter of 9 December 2010, but his statement of 10 November 2010 was in existence albeit the subject of an intended (but ultimately unsuccessful) challenge by way of judicial review (see paragraphs 16 above). At all stages of this process after 29 August 2010, the Secretary of State’s intention to withdraw Circular 1/2006 was known.

The Secretary of State’s decision letter on Mr Hanrahan’s appeal contained the following paragraphs indicating the view taken of the planning dimension at the time of the decision letter:

“6.

Regional Strategies, including the South East Plan, had been revoked by the Secretary of State on 6 July 2010, and so the Inspector did not consider that Plan at the Inquiry …., following the decision in the Courts on 10 November 2010 [in Cala No. 1] the South East Plan has been reinstated, and is therefore part of the development plan. Notwithstanding this, the Secretary of State has clearly stated his intention to revoke all the Regional Strategies, including the South East Plan; and has stated that the revocation will be enacted by way of the Localism Bill. The Secretary of State has taken these matters into account in determining this appeal, but does not consider it necessary to refer back to the parties before reaching his decision. This is because, as the partial review of the South East Plan to address the regional need for gypsy and traveller caravan sites remains incomplete, policy H7 (requiring provision to be made in Local Development Documents) does not form a part of the Development Plan.

7.

The Secretary of State has taken account of ODPM Circular 01/2006 … as a material consideration in his determination of these cases. In reaching his decisions, he has also taken account of his announcement on 29 August 2010 of his intention to revoke it as he considers it to be flawed; and he gives less weight to the Circular. However, he is satisfied that the announcement does not raise any matters which would affect his decisions or require him to refer back to parties for further representations prior to reaching his decisions.” (All emphasis added.)

The principal argument advanced by Mr Masters on Ms Murphy’s behalf is that, in the circumstances I will describe shortly, she has been unfairly deprived of the opportunity to make representations (1) concerning the wrongful revocation of the Regional Strategies, their re-instatement and the weight to be given to the Regional Plan documents in her case (including the weight to be given to local and regional need) and (2) concerning his intention to withdraw the Circular and to give less weight to the Circular as part of his final decision. Both features are said to represent a breach of the Inquiry Rules (see paragraph 36-41 below) and to represent a breach of natural justice. He also submits that the reasons given in the decision letter were inadequate in a number of respects.

Mrs Doran and her family had occupied land known as The Pear Tree, New Park Road, Hockley, Essex, as a gypsy site with the benefit since November 2008 of temporary planning permission for the siting of a mobile home and two touring caravans for a gypsy/ travelling family. This was a temporary and personal permission to which effect was given by the imposition of a condition at the time of the permission that the occupation of the site “shall be limited to the family of … Mrs Hannah Doran and her resident dependants and for a temporary period expiring on 28 October 2011.”

By an application dated 23 March 2009 Mrs Doran sought from Rochford District Council planning permission for the same purpose, but without the need to comply with the condition to which I have referred - in other words, she was essentially seeking a permanent permission. This application was refused by the planning authority by notice dated 28 May 2009 and Mrs Doran appealed to the Secretary of State.

His Inspector, Mr Richard Clegg BA (Hons), DMS, MRTPI, held a public local inquiry on 23 and 24 March 2010 and in a report dated 30 July 2010 recommended the grant of permanent planning permission or, in the alternative, a three-year temporary planning permission.

In his decision letter of 9 December 2010 the Secretary of State decided to grant a temporary two-year planning permission only.

In his decision letter the Secretary of State said much the same in relation to the changing legal landscape to which I referred in paragraphs 5-20 above as he did in the decision letter affecting Ms Murphy:

“5.

Regional Strategies, including the East of England Plan, which formed part of the development plan at the time of the inquiry, were revoked by the Secretary of State on 6 July 2010 …. However, following the decision in [Cala No. 1] the East of England Plan has now been reinstated. This includes a revision concerning accommodation for gypsies and travellers which was published in July 2009 … and which identified a need for a minimum for 15 additional pitches in Rochford. Notwithstanding this, the Secretary of State has clearly stated his intention to revoke all Regional Strategies, including the East of England Plan; and has stated that the revocation will be enacted by way of the Localism Bill. The Secretary of State has taken these matters into account in determining this appeal, but does not consider it necessary to refer back to parties before reaching his decision. This is because he considers that the need for additional sites, as expressed in the revision of the East of England Plan, has been taken into account by the Inspector in drafting the [Inquiry Report] on the basis of the evidence put to the Inquiry (see paragraph 12 below).

6.

The Secretary of State has taken account of ODPM Circular 01/2006 … as a material consideration in his determination of this case. However, in reaching his decision he has also taken account of his announcement on 29 August 2010 of his intention to revoke it as he considers it to be flawed; and he gives less weight to the Circular. However, he is satisfied that the announcement does not raise any matters which would affect his decision or require him to refer back to parties for further representations prior to reaching his decision. (All emphasis added.)

Mr Rudd, on Mrs Doran’s behalf, accepts that in the light of Cala Homes (No. 2) he can no longer (as originally intended) challenge the lawfulness of the Secretary of State giving weight to his intention to revoke both the RSS and the Circular. Indeed in Smith v Secretary of State for Communities and Local Government [2012] EWHC 963 (Admin) Ouseley J held, following Cala Homes (No. 2) that “it is perfectly rational for a Secretary of State to say … that Circular 01/2006 is a flawed policy, to which he will give less weight, albeit that it remains a policy in force and not revoked.” He went on to say this: “He does not have to identify the particular errors in it in order to reach that judgment lawfully, nor does he have to identify what will replace it in order to reach that judgment. He is entitled to say that he will give it less weight.”

However, allying himself with the submissions of Mr Masters, Mr Rudd contends that in accordance with the Inquiry Rules (or simply the requirements of natural justice) the Secretary of State should have provided the parties with an opportunity to make written submissions on what he submits was “the radically changed policy position prior to making his decision” which, he submits, constituted “new evidence”. The Secretary of State, he says, determined the appeal in an entirely different policy context from that which existed at the time the parties presented their cases to the Inspector, when all parties approached the appeal on the basis that both the RSS and Circular were extant and were to be given full weight, whereas at the time of the Secretary of State’s decision he had declared his intention to revoke both the RSS and the Circular and would therefore give less weight to both. He submits also that the Secretary of State has failed to give adequate or proper reasons for disregarding the opinion of his Inspector and reaching an opposing conclusion in relation to two important issues. I will refer to those issues shortly.

I will deal with the argument under the Inquiry Rules first.

The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000/1624), which apply to appeals against the refusal of planning permission, provides as follows at paragraph 17(5):

If, after the close of an inquiry, the Secretary of State –

(a)

differs from the Inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the Inspector; or

(b)

takes into consideration any new evidence or new matter of fact (not being a matter of government policy),

and is for that reason disposed to disagree with a recommendation made by the Inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the reopening of the inquiry.

That rule applies to the appeals against the refusals of planning permission in both Ms Murphy’s and Mrs Doran’s cases.

Paragraph 20 of the Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002, which apply to appeals against enforcement notices, is in substantially the same terms. It applied to the appeal against the enforcement notice in Ms Murphy’s case.

It is clear from each of the decision letters that the Secretary of State considered whether he should refer back to the parties before reaching a final decision, but decided in each case that it was not necessary. He is, of course, only required under the rules to refer back to the parties if he is “disposed to disagree with a recommendation made by the Inspector” because of some “new evidence or new matter of fact (not being a matter of government policy)” that he takes into consideration. In the case of the appeal in which Ms Murphy was interested (Mr Hanrahan’s case) the Secretary of State did not disagree with the recommendation of the Inspector. He did take into account as a material consideration his intention to abolish the RSSs and to revoke Circular 1/2006, but so far as the Hanrahan appeal was concerned, if anything those matters seemed to confirm the Inspector’s recommendation rather than to cause the Secretary of State to doubt it. On that basis (and leaving aside any question of whether the new material was “a matter of government policy” rather than some piece of “new evidence” or a “new matter of fact”) it is difficult to see how there was any obligation under the rules to refer back to the parties. Mr Maurici submitted that, to the extent that the Secretary of State took into account his own stated policy of revoking the previous policy, that was itself “a matter of government policy” and was thus not something that would have obliged the Secretary of State to refer back to the parties under the rules. I would prefer to express no concluded view on that argument, principally because it does not appear to have been the reason given by the Secretary of State for not going back to the parties. If it was the reason for not doing so, it may not necessarily have meant that the Secretary of State’s obligation, independent of the rules, to observe the requirements of natural justice was fulfilled and it may be that it was that obligation to which the two decision letters were directed. However, so far as Ms Murphy’s case is concerned, I do not consider that there was any breach of the rules. I will deal with the natural justice argument later.

In Mrs Doran’s case the Secretary of State did disagree with the Inspector on the question of whether the planning permission should be permanent or temporary. It is, of course, difficult to isolate the procedural approach in this kind of situation from the approach to the substantive question on the appeal. If the disagreement between the Secretary of State and the Inspector was because of the new matter that had arisen (assuming, for this purpose, that it is not excepted on the grounds of being “a matter of government policy”), then it would be incumbent on the Secretary of State under the rules to refer back to the parties.

Having regard to the reasons he gave for differing from the Inspector (see paragraphs 85-86 below), I think Mr Maurici was right when he submitted that the disagreement did not arise because of the new policy: it was much more to do with the Secretary of State’s view on the issues of prematurity (see paragraph 85 below) and the progress of adoption by the planning authority of its Allocations DPD (see paragraph 96 below). On that basis, I do not consider the Secretary of State was in breach of the Inquiry Rules by not referring back to the parties in Mrs Doran’s case.

That being so, the issue so far as each case is concerned depends on whether there has been a breach of the wider principles of natural justice rather than on a strict application of the Inquiry Rules. It appears from a case such as Rea v Minister of Transport (1984) 48 P. & C.R. 239 that the test to be applied is whether a decision not to refer back is Wednesbury unreasonable. Again, it is rather difficult to separate out the procedural from the substantive issues, but for reasons I will summarise I do not consider that it can be said to have been unreasonable in each case for there to have been no reference back to the parties.

The reasons given for not going back to the parties in the Hanrahan appeal was that since “the partial review of the South East Plan to address the regional need for gypsy and traveller caravan sites remains incomplete, policy H7 (requiring provision to be made in Local Development Documents) does not form a part of the Development Plan” and in Mrs Doran’s case because “the need for additional sites, as expressed in the revision of the East of England Plan, has been taken into account by the Inspector in drafting the [Inquiry Report] on the basis of the evidence put to the Inquiry”.

As I have said, consistent with the approach in Rea, it would have to be said that each decision not to refer back thus arrived at was Wednesbury unreasonable. To a large extent that depends on whether the Secretary of State’s view on the issues identified by him was Wednesbury unreasonable in its own right.

Policy H7 refers to a proposed policy for inclusion in the South East Plan (the RSS for the South East). As will be clear from paragraph 26 above, the proposition that “policy H7 (requiring provision to be made in Local Development Documents) does not form a part of the Development Plan” was relied upon by the Secretary of State for declining to refer the matter back to the parties. In his Skeleton Argument, Mr Masters asserted that policy H7 was part of the development plan or, if it was not formally part of the development plan, it had been agreed by the Regional Assembly on 4 March and consequently a “material consideration of some weight”.

The terms of H7 at this stage were as follows:

“Provision for Gypsies and Travellers: Interim Statement

7.27

DCLG Circular 01/2006 Planning for Gypsy and Traveller Caravan Sites sets out the policy and legislative framework for the Government’s aim of reducing tensions between Gypsies and Travellers and the settled community, through sustainable site provision and effective enforcement. The Circular requires regional spatial strategies, on the basis of local authority Gypsy and Traveller Accommodation Assessments, to determine a strategic view of needs across the region and identify the number of pitches required for each local planning authority. It also requires local authorities to allocate suitable sites within their local development documents to meet the identified need set out in regional spatial strategies. The Department for Communities and Local Government’s Circular 04/2007 – Planning for Travelling Show People provides further guidance.

7.28

The regional planning body are currently (April 2009) undertaking a single issue review of Gypsy and Traveller accommodation needs in the region. As part of the review, local authorities in the South East have now completed their Gypsy and Traveller Accommodation Assessments in accordance with the Housing Act 2004.

7.29

The accommodation assessments will provide for the first time comprehensive, robust and credible data relating to the needs and requirements of the Gypsy and traveller community.

7.30

Circular 01/2006 states that where there is a clear and immediate need, local planning authorities should bring forward development plan documents containing site allocations in advance of regional consideration of pitch numbers, and completions of the Accommodation Assessments.”

Whatever its status, it is plain on its face that the policy as stated does not identify a precise need and/or the number of pitches required in the region. Mr Green, for Wycombe District Council, submits that it contained “no formal policy on the provision of sites for gypsies” and that would appear to be correct.

In a witness statement introduced in response to Mr Masters’ assertion, Ms Jean Nowak, a Decision Officer within the Planning Casework Division at the Department for Communities and Local Government and the officer who drafted the Decision Letter in this case, said this:

“4.

The Secretary of State published the final version of the South East Plan (also known as the Regional Spatial Strategy for the South East) on 6 May 2009. This replaced the Regional Planning Guidance for the South East (RPG9) but the Government did not adopt any policy on gypsies and travellers in that document. A review had been initiated in response to the publication of Government guidance requiring Regional Spatial Strategies to address the accommodation requirements of gypsies and travellers. This guidance is set out in Planning Circulars 01/2006: Planning for Gypsy and Traveller Caravan Sites (CLG February 2006), and 04/2007 Planning for Travelling Showpeople (CLG August 2007).

5.

This Partial Review of South East Plan (Partial Review of the Regional Spatial Strategy for the South East: Provision for Gypsies, Travellers and Travelling Showpeople) assessed the accommodation needs of gypsies and travellers across the South East region and aimed to set district-based targets for pitch provision. It was agreed by the full South East Regional Assembly on 4 March 2009 and set out as a new Policy H7 to be incorporated in section 4 of the South East Plan. This Policy included targets for the number of new pitches that must be provided on caravan sites in each local authority area in the South East. Before being published and becoming part of the South East Plan, policy H7 was to be subject to an examination in public which would be considered by the Secretary of State before final publication.

6.

An examination in public was held in February 2010, but the Panel report was never published due to the Government’s intention to abolish the South East Plan. As such, this Partial Review does not form part of the published final version of the South East Plan.”

The Partial Review referred to was dated June 2009 and contained the following paragraphs to explain its purpose:

“2.1

This document is the product of a single issue review of the South East Plan, the Regional Spatial Strategy for the South East. The review was initiated in response to publication of Government guidance requiring that Regional Spatial Strategies address the accommodation requirements of Gypsies and Travellers. Guidance states that we should identify the number of caravan pitches each local planning authority should provide (but not their location) and identify suitable land on which to accommodate them. This process takes account of Gypsy and Traveller Accommodation Assessments produced by our local authorities, and a strategic view of needs across the region.

2.2

This guidance seeks to reverse underprovision for GTTS in recent decades, and thereby to reduce unauthorised sites and the tensions they can cause with other residents. In the South East 22% of GTTS caravans have no authorised place to stop, and their occupants are therefore legally homeless. Gypsies and Irish Travellers already fare the worst of any British ethnic group in terms of health and education. The shortage of authorised sites makes it more difficult for an already socially excluded and discriminated-against part of the community to access employment, health care, education and other services.

2.3

To address their needs for the period 2006-2016 we recommend that an additional 1,064 permanent residential pitches are provided for Gypsies and Travellers, and a further 302 for Travelling Showpeople. Taken together, the average local authority in the South East will need to find suitable land for 20 pitches, although individual requirements vary. This represents around 0.5% of the equivalent requirements for standard housing in the same period. The recommended approach includes a modest element of regional redistribution to widen opportunities for GTTS in areas with limited current provision, and thereby to improve delivery by broadening responsibility for new pitch provision.”

Policy H7 was expressed in these terms in the Partial Review:

“Local Planning Authorities will make provision in Local Development Documents to deliver 1,064 net additional permanent residential pitches for Gypsies and Travellers in the period 2006-2016, and 302 for Travelling Showpeople, as set out in Table H7a which details pitch requirements by local authority. Local Planning Authorities will also make appropriate provision in Local Development Documents to meet requirements for transit and temporary stopping purposes.”

Table H7a indicated that the “net additional pitch provision requirements 2006-2016” for gypsies and travellers in the Wycombe District was 15. (The contention on behalf of Mr Hanrahan at the Inquiry was that the immediate unmet need in the Wycombe District was 22 pitches and that provision for a further 10 should be made over the 5-year period to 2016.)

As indicated, however, the proposed policy was never adopted as part of the Development Plan.

It is clear, therefore, that the decision letter was accurate in what it said. It is also clear that it was accepted (realistically) on Mr Hanrahan’s behalf by his planning expert before the Inspector that it was unlikely that the draft policy would be adopted. The fact that the status it had immediately prior to the Secretary of State’s announcement on 6 July 2010 (see paragraph 11 above) was reinstated in the formal sense after Cala Homes (No. 1) did not, in my view, change materially the situation confronting the Secretary of State because the Secretary of State made it clear on 10 November 2010 that his intention was not to proceed with a regional strategy. So far as natural justice is concerned, I am unable to see what meaningful representations could have been put forward on Mr Hanrahan’s behalf that could possibly have made any difference. As Mr Green put it pithily in his Skeleton Argument, the principles of natural justice did not require that he should have been given an opportunity to make further representations on a draft policy that his own expert witness had accepted was unlikely to be adopted.

I will deal with whether the Secretary of State’s approach was adequately reasoned later.

I can, I think, deal with the natural justice argument in this case very shortly. Despite Mr Rudd’s submission in his Skeleton Argument that, given what he described as a radical change of policy as between the time the parties were before the Inspector and when the Secretary of State made his decision, natural justice required an opportunity to make further representations, he did not specify precisely how any such representations could have made any difference. He does not, in fact, challenge the reason given by the Secretary of State for not referring back to the parties as set out in paragraph 32 above and indeed it appears to be a valid reason. Since I must judge the question of whether there should have been a reference back on the basis of whether it was Wednesbury unreasonable not to have done so, I merely content myself with saying that no argument of substance has been advanced to that effect. An argument is made about the actual decision of the Secretary of State and an argument is advanced about the quality of his reasons, but no argument is truly advanced suggesting that he was wrong not to refer back to the parties before coming to a decision.

I will return to what may fairly be described as the substantive arguments in Mrs Doran’s case when I have dealt with the substantive arguments in Ms Murphy’s case.

Mr Masters referred in support of his arguments to the “Advice” produced by the Planning Inspectorate for use by its Inspectors in relation to what was then the forthcoming abolition of Regional Strategies. It set out an approach developed to assist in determining which cases “may merit reopening, which may be dealt with by a reference back to parties for comment and which cases may not need any additional action”. Sub-paragraphs (c) and (d) of Annex A were in these terms:

“(c)

where both local policy and RS policy are relied upon on the same issue, but the RS is relied on to a greater extent and if as a result of applying reduced weight to the RS the outcome is less certain or could change, then the parties’ views should be canvassed …;

(d)

where the parties’ cases rely primarily on the RS, then the parties should be canvassed ….”

This is obviously, as the document says, “advice” which will have been promulgated to assist decision-makers on the correct approach if less weight is to be attached to the RSS by the Secretary of State than was attached to it by the parties appearing before the Inspector. Again, it must not be treated like a statute. There is, plainly, an element of judgment in each case that raises this kind of issue. The judgment of the Secretary of State in this case was that the Green Belt and AONB considerations clearly outweighed the other considerations (a view also taken by the Inspector) and that no further representations were going to make any difference to that assessment. For the reasons I will mention below (see paragraphs 60-67), I do not see that as a conclusion that can be criticised.

Looking at the matter somewhat more narrowly, if and to the extent that it would have been open to the Inspector to take account of Policy H7 (which it was not because, whatever its status within the RSS, the RSS had been abolished at the time of the Inquiry), by the time the matter was considered by the Secretary of State, and the RSS was nominally reinstated, the policy did not form part of the RSS in any event. In other words, when comparing the weight that could be given to it by the Inspector, on the one hand, and by the Secretary of State, on the other, in the circumstances there was hardly any difference. On that basis, I cannot see how either (c) or (d) was engaged in this case.

Once it is acknowledged (as it must be in the light of Cala Homes (No. 2)) that the Secretary of State was entitled to take into account as material considerations his decisions to revoke RSSs and to withdraw circular 1/2006, and that the weight he gave to these considerations was a matter for him, the arguments advanced by Mr Masters that go to the actual decision of the Secretary of State (and the reasons given), as I understand them, are (1) that insufficient regard was given to an established unmet need for gypsy sites in the district and (2) that he failed to give any weight to paragraph 71 of PPS3.

In relation to unmet need, he draws attention to the Inspector’s conclusion on the issue. I will not quote in full paragraphs 179-185 of his report, but will quote the concluding paragraph on this issue, namely, paragraph 185:

“[Wycombe District Council] argued that, following revocation of RSS, it was for them as the local authority to assess and meet the needs arising in their area …. The guidance accompanying the DCLG’s Chief Planner’s letter dealing with the implications of revocation made it clear that “local authorities will be responsible for determining the right level of site provision, reflecting local need and historic demand”. Whether such need should relate expressly to defined district authority boundaries was less clear. Past co-operation between authorities in the Thames Valley area appeared to recognise that individual district boundaries did not reflect the pattern of living of the travelling community. Certainly, in considering at the inquiry possible locations where the appeals site occupiers could move to, the Council sought to have regard to sites in adjoining local authority areas within South Buckinghamshire. Having regard to the extent to which the situation within this wider area is relevant to the issue, my conclusion is that there is currently a local need for further Gypsy sites, and that this is a consideration which weighs in favour of the appeals.”

In relation to the Inspector’s report he argues that had the Inspector had proper regard to policy RSS Policy H7 (which he could have done had it not been wrongly revoked) he would have been obliged to find that there was a significant unmet need in the district. The Inspector could not, of course, take into account RSS Policy H7 because of the revocation of the RSS pursuant to the Secretary of State’s announcement on 6 July 2010.

So far as the Secretary of State was concerned, his view on unmet need was expressed as follows:

“Having considered the arguments set out by the Inspector at [paragraphs] 179-185, the Secretary of State takes the view that there is no reliable indicator of currently unmet need in the area. However, he agrees with the Inspector … that there is a personal need for accommodation by the 9 families occupying the appeals site and … that the timetable for dealing with need issues within Wycombe has been established by the DPD process …. He also agrees … that the Inspector’s conclusion that there is currently a need for further gypsy sites within the wider local area is a consideration which weighs in favour of the appeals.”

Mr Masters criticizes this approach and asserts that the Secretary of State also wrongly ignored Policy H7 and was wrong to find that there was no reliable indicator of current unmet need in the district. If the Secretary of State had given weight to Policy H7 he too would have been obliged to conclude that there was a significant unmet need in the district. This then should have been given significant weight in the balancing exercise.

In my judgment, the Secretary of State was entitled in the circumstances prevailing at the time he made his decision to conclude that there was no reliable indicator of current unmet need in the area. The figure put forward in Table H7a via the Regional Assembly (see paragraph 51 above), whilst presumably tested at the Examination in Public, never found its way into an adopted policy and, accordingly, must be treated as nothing more than an estimate, albeit one that must be taken to have had a degree of informed input. Nonetheless, according to the Inspector, the GTAA (which would presumably have informed this estimate at a regional level) was not without its inadequacies. I will not quote paragraphs 180-184 of his report where this is dealt with. However, the short point made by Mr Maurici, which I accept, is that, whatever debate there may have been about the precise level of unmet need in the district, both the Inspector and the Secretary of State approached the situation on the basis that there was within the wider local area a need for further gypsy sites and that that was a factor that weighed in favour of the appeals. As Mr Maurici says, that point was in effect accepted in favour of Mr Hanrahan’s appeal both by the Inspector and by the Secretary of State.

It is, of course, axiomatic that it is for the Secretary of State to decide what weight he gives to a material consideration when carrying out the balancing exercise. His overall conclusion was expressed thus at paragraph 20:

“The Secretary of State agrees with the Inspector … that, in respect of granting permanent planning permission, the components of identifiable harm are considerable in respect of the harm to the Green Belt by reason both of inappropriateness and loss of openness and in respect of the adverse consequences for the AONB landscape. The very special circumstances to be weighed against that include the lack of availability of alternative sites, the personal circumstances of the occupiers of the appeals site and their right to respect for their private and family life and their home. The Secretary of State agrees with the Inspector that these very special circumstances are significant but that, whether viewed individually or collectively, they do not outweigh, let alone clearly outweigh, the combined harm arising from the development involved - which would be in conflict with both national and development plan policy.”

It is clear from that paragraph that the Secretary of State did give significant weight in the balancing exercise to “the lack of availability of alternative sites” (in other words, to a consideration amounting to an unmet local need), but did not feel able to say that it, together with other significant factors that militated in favour of the appeals, outweighed the harm to the Green Belt and the consequences for the AONB landscape. That is a matter of planning judgment with which the court cannot possibly interfere.

The next matter is PPS3.

PPS3 is “Planning Policy Statement 3 (PPS3): Housing”. Paragraph 71 is in these terms:

“Where Local Planning Authorities cannot demonstrate an up-to-date five year supply of deliverable sites, for example, where Local Development Documents have not been reviewed to take into account policies in this PPS or there is less than five years supply of deliverable sites, they should consider favourably planning applications for housing, having regard to the policies in this PPS ….”

The argument, in short, is that PPS3 applies to gypsy housing needs. It is suggested that paragraph 21 leads to that conclusion. Paragraph 21 is in these terms:

“Regional Spatial Strategies should set out the region’s approach to achieving a good mix of housing. Local Planning Authorities should plan for a mix of housing on the basis of the different types of households that are likely to require housing over the plan period. This will include having particular regard to:

– Current and future demographic trends and profiles.

– The accommodation requirements of specific groups, in particular, families with children, older and disabled people.

– The diverse range of requirements across the area, including the need to accommodate Gypsies and Travellers.”

The reference to “Gypsies and Travellers” is cross-referenced to Circular 1/2006.

The Inspector said this:

“Reference to the need to accommodate Gypsies and Travellers earlier in PPS3 would not mean that its paras 54 and 71 requirement to maintain a rolling 5 year supply of deliverable sites applied also to Gypsy and Traveller accommodation. Policy on this was in C1/2006, to which PPS3 was cross-referenced.”

Apart from saying that PPS3 was one policy document that he regarded as “material consideration”, the Secretary of State made no further reference to it in his Decision Letter other than to say that he agreed with the Inspector that the matter referred to in the paragraph quoted in paragraph 72 above did “not add to the weight of other considerations in the balance.”

Mr Masters submits that he fell in to the same error as the Inspector and that this approach discriminates and offends against the Equality Code, the Race Relations Act and Article 14 of the European Convention of Human Rights.

I am bound to say that, when invited to read the relevant paragraphs in PPS3 and then looking at them in the context of the rest of the document, I did not gain the impression that a 5-year supply of sites for gypsies and travellers was what was being required of local authorities. It appeared to me to relate to built accommodation.

Since then I have noted two decisions of Ouseley J to similar effect. In Taylor v SSCLG [2012] EWHC 684 (Admin), to which Mr Maurici has drawn the attention of all parties, he said this:

“I add that I am far from clear that paragraph 71 of PPS 3 could be intended to apply to the provision of gypsy sites. There would have to be a separate analysis of such sites, since a shortfall or surplus on the one could not rationally create or provide a need for the other; yet PPS 3 is silent about that.”

In Smith v SSCLG (see paragraph 33 above), he went further and said this:

“It is necessary to say a little about how PPS3 is structured, because, on the face of it, by its title and by much of its content it is incapable of applying sensibly to the provision of pitches for Gypsy and Traveller caravan sites, not least because one important aspect is different as between housing provision and Traveller site provision, where there is an unmet need which can be dealt with through the development plan process. That is because temporary planning permission is a feasible solution, as an interim or transitional provision, as Circular 01/2006 makes clear in paragraph 45 for a Gypsy caravan site, but would be an absurdity if applied to bricks and mortar accommodation. One is moveable and the other is not.

…

It is my judgment that although there are some references to pitches for Gypsies in PPS3 … it is abundantly clear that paragraph 71 does not apply. Paragraph 71 is dealing with the provision of bricks and mortar accommodation for permanent accommodation assessed through the RSS and DPDs. It is not, in my judgment, dealing with pitch provision.”

I respectfully agree and there is nothing I would wish to add to the analysis. I would add that I can see no basis upon which a different approach to the provision of built accommodation and the provision of pitches for gypsies and travellers offends any of the provisions referred to in paragraph 73 above. It merely reflects (a) the realities of the way one section of the community chooses to live as against the way another section of the community chooses to live and (b) the nature of the accommodation for which provision must be made and planned.

Mr Masters also submitted that this error concerning PPS3 was compounded by the fact that the Secretary of State stated that he had given less weight to Circular 1/2006 generally and had failed to explain to which parts of the Circular less weight would be given to and to which full weight would be given. He submits that this has left Ms Murphy “in total mystery as to which parts of the Circular he has considered, which parts he considers relevant and which not and what weight he has given to relevant matters”. This reflects, he submits, an inadequacy of reasoning.

I am unable to accept this submission. As Mr Maurici points out, the Secretary of State announced his intention to withdraw the whole Circular and thus, whilst it remained necessary to consider it, his approach at the decision-making stage was to give the whole Circular less weight. I do not, for my part, see why in this context it was necessary to particularise in detail every nuance of the balancing process. The bottom line in all this is that none of the considerations that told in favour of allowing the appeals, whether taken singly or collectively, outweighed the considerations telling against, bearing in mind that “very special circumstances” were required to overcome the presumption against inappropriate development in the Green Belt. All that seems to me to be abundantly clear from the Secretary of State’s decision letter and I cannot see any basis upon which it could realistically be argued that inadequate reasons were given.

I do not consider that any of the further arguments advanced by Mr Masters operates to undermine the validity of the substantive decision taken by the Secretary of State.

The first issue raised in connection with the Secretary of State’s decision letter is the way in which he dealt with the issue of prematurity compared with the way in which the Inspector dealt with it.

On this issue the Inspector said this at paragraph 51 of his report:

“The Council argued that, in view of its commitment to allocate sites through the Allocations DPD, there was no need for a permanent permission, and that the proposal would be premature at this early stage in the preparation of the DPD …. The DPD will provide a planned response to the need to provide gypsy site accommodation. Whilst the ODPM document The Planning System: General Principles explains that where a proposal is so substantial or the cumulative effect would be so significant it may be premature in respect of the DPD which is in preparation, this is a small-scale proposal in a District where planning permission has been granted for only three other pitches since 2006 …. I do not consider that the granting of an indefinite planning permission would prejudice preparation of the Allocations DPD, or that a temporary planning permission is necessary on the ground of prematurity.”

He also said this at paragraph 53:

“It is common ground between the main parties that there is an immediate and unmet need for gypsy accommodation in Rochford …. Policy H3 of the former RSS set out minimum levels of provision for the period 2006-2011, and it specified that at least 15 additional residential pitches should be provided in Rochford during this period: only three permanent pitches have been provided since 2006, leaving a balance of 12 …. The final report of the GTAA was also published in 2009. The extract from the report submitted by the appellant shows the calculation of need for accommodation in Rochford as 12 additional pitches for 2008-2013 … which is broadly consistent with the level of provision in the former RSS. I consider that there is an immediate need for a relatively high level of permanent gypsy pitches, and this should carry significant weight.”

The Secretary of State said this at paragraph 11:

“The Secretary of State has considered the Inspector’s analysis at [paragraph 51] of the issue of prematurity. He does not agree with this analysis or with the Inspector’s conclusions that the granting of an indefinite planning permission would not prejudice preparation of the Allocations DPD and that a temporary planning permission is not necessary on grounds of prematurity. On the contrary, he considers that granting a permanent permission in advance of the Council completing the process of identifying sites through the Allocations DPD would be contrary to the intentions of section 38(6) of the Planning and Compulsory Purchase Act 2004 …. The Secretary of State does, however, accept that there are other arguments for allowing the appellant and her family to remain on the site for a further short temporary period, and he agrees with the Inspector that, for the reasons [he gave] the concerns raised by local residents do not count against the appeal proposal.”

He followed this at paragraph 12 with the following:

“While, for the reasons given in paragraphs 5 and 6 above, the Secretary of State has tempered the weight which he gives to the East of England Plan and to the guidance in Circular 1/2006, he has taken account of the fact that, as agreed by the main parties … there is an immediate need for a relatively high level of permanent gypsy pitches in Rochford; and he has given significant weight to that as a material consideration in concluding that an extension to the current temporary permission is justified to allow time for the identification of permanent sites ….”

Mr Rudd draws attention to the relevant parts of PPS1 as follows:

“Prematurity

17.

In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity where a DPD is being prepared or is under review, but it has not yet been adopted. This may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD. A proposal for development which has an impact on only a small area would rarely come into this category. Where there is a phasing policy, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.

18.

Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified …

•

Where a DPD is at the consultation stage, with no early prospect of submission for examination, then refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question.

19.

Where planning permission is refused on grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the DPD process.”

He submits that the conclusion reached by the Inspector was clear and logical and argues that a one pitch site cannot be considered “substantial” and the “cumulative effect” in late 2010 of adding one pitch to the previously granted three pitches in the district (leaving a balance of 11 from the original 15 required to be provided by 2011) cannot be described as being “so significant” as to prejudice the emerging DPD, particularly since the appeal site was included as a potential suitable site in the DPD and the Council had agreed that the site meets the criteria of the emerging relevant policy. He submitted that a refusal of permission would not normally be justified on that basis. He then suggests that the Secretary of State simply disagrees with the Inspector giving no reasons, or no adequate reasons, for why this development is, as he puts it, “one of those rare developments where refusal can be justified”. He submits that it is incumbent on the Secretary of State to give some level of reasoning that allows the appellant to understand why her case on this point was not accepted.

As advanced, this submission does appear to require the guidance in PPS1 to be read as a statute and the reasons for departing from the guidance as demanding of a very clear and precise articulation. Guidance is guidance and nothing more - and the nature of the reasons given by the Secretary of State must be judged in the light of the oft-quoted words of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953 at paragraph 36:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

Mr Maurici contends that prematurity is not a legal concept, but a matter of planning judgment and planning policy which is essentially a matter for the decision maker. The concept of prematurity in the planning context, he submits, allows a decision maker in effect to postpone a decision relating to the grant of permission for a proposed development until what is otherwise a relevant emerging local planning policy has been settled. That, in my view, expresses the approach to the issue accurately.

He submits that the essential issue in Mrs Doran’s appeal was whether the possible grant of a permanent permission for a gypsy caravan site on the Appeal Site was better determined via the emerging Core Strategy process in which the local planning authority was committed to allocate sites rather than through an individual application for planning permission made at the stage it was being considered. The Inspector and Secretary of State took different views on that and he submits (a) that was a judgment to which the Secretary of State was entitled to come (and it was, incidentally, was also, the judgment of the local planning authority) which no-one could seriously suggest was Wednesbury unreasonable (and indeed Mr Rudd does not so argue) and (b) read as a whole the decision letter easily meets the standard of reasoning required in law in relation to this issue. In that latter respect he draws attention to the following: first, he refers to paragraph 11 of the letter referred to at paragraph 85 above; second, he refers to paragraph 13 of the letter which concludes that the Inspector was himself right to hold that whilst the personal circumstances of the occupants of the Appeal Site showed that they had a need for a permanent site, that did not necessitate the continued occupation of the Appeal Site as opposed to another site which led the Secretary of State to decide that “[Mrs Doran’s] need for permanence [did not outweigh] the prejudice to the Council’s planned approach to the identification of permanent sites that would be caused if a permanent permission was granted in this case”; third, he refers to paragraph 14 of the decision letter which refers to the existence a published programme by the Council for the adoption of an Allocations DPD (to which I will refer further below); fourth, he refers to paragraph 15 of the decision letter which indicates that he had “taken account of the Inspector’s reasoning at [paragraph 58] that the policy approach being applied by the Council [was] capable of bringing forward an appropriate level of accommodation for gypsies and travellers”. In other words, all these factors supported the proposition that it was premature to grant a permanent planning permission at the time.

I agree with his submission that the decision letter at least meets the requirements of Porter and I do not consider that Mr Rudd’s challenge on this issue can be sustained.

Mr Rudd’s second point is, in a sense, a partial development of the first point, but with an independent aspect also. He submits that the Secretary of State failed to give adequate or proper reasons for reaching an opposite conclusion in relation to the Council’s Site Allocations DPD timetable than the conclusion reached by the Inspector. This goes, it is argued, to the weight to be given to the lack of available alternative accommodation for Mrs Doran and her family and to the length of any temporary planning permission if that approach must be accepted.

The Inspector, who heard the evidence and received the written submissions of the parties, said this at paragraph 56:

“It is an agreed position in the statement of common ground that at present there are no alternative available sites in the District …. Policy H7 in the emerging Core Strategy explains that pitches will be allocated in line with the number specified in the former RSS …. The emerging Allocations DPD puts forward seven possible options for gypsy and traveller site provision …. Each of these sites is in the Green Belt …, which covers about 76% of the District …, and given the extent of this designation, it seems likely that any future gypsy site will be located there. It is anticipated that the DPD will be adopted by the end of 2011 …. The appellant suggested that the timetable would not be achieved …. Whilst I do not doubt the Council’s intention to proceed expeditiously with preparation of the DPD, it may be difficult to maintain the programme should any complications or unforeseen events arise.”

He continues thus in paragraph 57:

“Even if the DPD remains on target for adoption, consideration needs to be given to the time required to establish new sites, bearing in mind that the existing temporary planning permission requires occupation of The Pear Tree to cease on 28 October 2011. The appeal site itself is one of the options for permanent gypsy accommodation identified in the emerging Allocations DPD, and I consider this separately below …. The Council suggested that sites could come forward in advance of adoption, once the outcome of the examination was known. However, the timetable only includes a maximum of six months from the examination itself to adoption, and, with the exception of the appeal site, this may not be sufficient to allow any necessary land to be acquired, planning permission gained and new sites to be laid out. The potential absence of an alternative site the occupants of The Pear Tree following the expiry of the temporary planning permission adds some further weight to their personal need for permanent accommodation.”

The Secretary of State said this in relation to these matters at paragraph 14 of the decision letter:

“The Secretary of State accepts the agreed position … that there are at present no alternative available sites in the District. However, in the absence of any firm evidence to substantiate the Inspector’s assertion that the Council may find it difficult to maintain its programme for the adoption of the allocations DPD, he sees no reason to reject the Council’s expectation that the DPD will be adopted by the end of 2011. Similarly, the Secretary of State has seen no evidence to substantiate the Inspector’s pessimism … with regard to the Council’s ability to bring forward permanent sites once the outcome of the examination into the Allocations DPD is known, and so he does not consider it appropriate to take such a possibility into account at this stage. Were such delays to materialise, the Secretary of State considers that it would be more appropriate to deal with their consequences towards the end of his proposed extension to the period of the temporary consent.”

Mr Rudd contends that the Inspector gave firm reasons why he did not believe that the Council was likely to meet its timetable having considered the written evidence and oral evidence and the challenges to that evidence. The Secretary of State was not present and unless he can point to evidence that shows the Inspector was wrong, or possibly wrong, then, it is argued, he should defer to the Inspector’s opinion. He is, it is accepted, perfectly entitled to reject his Inspector’s opinion, but it should be done on an evidential basis.

There is, in my view, some force in this submission as a matter of principle although, not unnaturally, each case will depend upon its own facts. However, as it seems to me, the answer to this argument in the context of this case is to be found in the words the Inspector used, namely, that “it may be difficult to maintain the programme should any complications or unforeseen events arise” (my emphasis). I do not think it can fairly be said that the Inspector gave “firm reasons” for holding that a delay in the implementation of the Allocations DPD was likely. His conclusion was, in its phraseology, guarded and somewhat speculative and rather suggested that a delay was likely to occur only if “any complications or unforeseen events” should arise. Whilst, of course, the Inspector’s experience may have led him to think that there could be a delay, relying upon unspecified and uncertain complications and unforeseen events is not itself a firm evidential foundation for concluding that there would be a delay.

In those circumstances, I do not think that the Secretary of State can be criticised for looking at the Inspector’s conclusions and questioning whether the evidential foundation before the Inspector did justify his conclusion. On that basis, I cannot see any grounds for criticising the Secretary of State’s view that there was no “firm evidence to substantiate the Inspector’s” conclusion, bearing in mind that the Inspector’s view in any event was that it was only a possibility that there would be a delay.

Whilst I have some reservations about Mr Maurici’s suggestion that this was all a matter of “planning judgment”, I consider he was right to submit that the correct interpretation of the Secretary of State’s view was that there was nothing he had seen to show that the planned timetable could not be maintained. I accept also his submission that whatever doubts the Secretary of State may have expressed about the Inspector’s conclusion on this matter, he also said that if the delays did materialise the question could be looked at again at the end of the temporary 2-year permission he was granting with, presumably, the possibility of the grant of a further temporary permission.

For the reasons I have given I do not think that the criticisms made of the procedure adopted by the Secretary of State or of the substantive decisions he made in each case (including the reasons given) can be sustained and, accordingly, these applications fall to be dismissed on their merits.

As indicated in paragraph 3 above, an issue has been raised about Ms Murphy’s standing to bring an application for permission to appeal under s. 289 of the 1990 Act. Section 289(1) provides as follows:

“Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.”

The question is whether she is a “person having an interest in the land” to which the enforcement notice relates. Mr Maurici has submitted that an “interest” in this context is a legal interest and that at the date of the application for permission to appeal was brought she had no such interest. It is not even clear, he submits, that she has such an interest now since there is no evidence that her acquisition of the plot within the land acquired by Mr Hanrahan has been registered.

Mr Maurici accepts that notwithstanding the absence of a standing to bring an appeal under s 289, in the light of Ms Murphy’s participation in the inquiry before the Inspector and her occupation of the land with her daughter, she does have standing to bring a claim for judicial review of the Inspector’s decision.

In the circumstances, the issue is somewhat academic and, since I have not heard sustained argument about it and its consequences, I think it wise not to express any concluded view about it. I would, however, venture the suggestion that this may be a case in which the word “interest” in the statute may need to be given a broad interpretation (perhaps on the basis that the statute “continues to speak”) in order to reflect the present-day reality of the way gypsies and travellers arrange their affairs. However, that seems to me to be a matter for another day in a case where the issue is of real importance.

The net result of my conclusions is that in Ms Murphy’s case, whilst I will grant permission to appeal under section 289, the appeal itself is dismissed and the application under section 288 must be dismissed. In Mrs Doran’s case the application under section 288 must be dismissed.

I should like to express my appreciation to all Counsel for their helpful and illuminating submissions.