Searle & Anor v Secretary of State for Communities and Local Government & Anor

This is an appeal under s 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) by which the Claimants seek to challenge the decision of the Secretary of State dated 9 December 2010, the Decision Letter (“the DL”), to uphold an enforcement notice dated 11 December 2009, issued by Chichester District Council (“the Council”).

The enforcement notice concerns land at Three Cornered Piece, Bohemia Hollow, East Harting, West Sussex. It lies within the South Downs National Park, and was, when the enforcement notice was served, within the South Downs Area of Outstanding Natural Beauty.

The enforcement notice alleged that, without planning permission, there had been a change of use of the land “to the stationing of two mobile homes and one caravan for the purposes of human habitation and the use of a stable block building for ancillary residential purposes”. The notice required the Claimants to discontinue this use and, in effect, to restore the land to its previous condition (which involved the removal of hardstandings, and so on).

The Claimants, who are Romany Gypsies, are brothers. They are travelling horse dealers. They own the land at Three Cornered Piece, which they bought out of the proceeds of the sale of some of their horses. When they bought the land there was a derelict stable building on it. That has now, with appropriate permission, been replaced by a new stable building consisting of two loose boxes, a hay store and tack room. It is not suggested that the appearance of this is out of keeping with the surroundings.

At the time of the notice, the Claimants were living on the site (but not in the stable block).

The enforcement notice was to take effect, on 22 January 2010, with a time period for compliance of one month. The Claimants brought an appeal against the issue of the enforcement notice. The appeal to this court is confined to ground (a) of section 174(2) of the 1990 Act. Ground (a) states that:

There was a hearing before an inspector, Claire Sherratt, on 25 May 2010. The hearing was followed by a site inspection on the same day. Prior to the hearing both the Claimants and the Council submitted statements. For the Claimants, the document submitted was entitled “Statement of Alison Heine”. Ms Heine is a planning consultant, who has some 20 years experience of planning matters, particularly those involving Gypsy and Traveller issues.

The Inspector rejected the claim for permanent planning permission, but concluded instead that, in the absence of suitable pitches for Gypsies and Travellers in the Chichester area, the Claimants should be granted temporary planning permission until alternative sites were likely to become available, which she considered would be by the end of 2013. That was her recommendation.

On 2 July 2010 the appeals were recovered for determination by the Secretary of State. By the DL, the Secretary of State disagreed with the recommendation of the Inspector on the ground that the harm that would result from the grant of even temporary planning permission was unacceptable.

Permission to appeal was granted by Bean J on 8 November 2011.

The three grounds are as follows (ground 1 having been abandoned, I will follow the parties in keeping to the original numbering):

That the Secretary of State had regard to an immaterial consideration, namely his intention to revoke and replace ODPM Circular 01/2006 (ODPM is the Office of the Deputy Prime Minister) and, as a result, gave less weight to that circular, notwithstanding the fact that it was not known which parts of the circular would be replaced with advice that is materially the same as existing advice under the circular. Such an approach is palpably irrational. Further, the Secretary of State failed to give intelligible, proper and adequate reasons for his decision to give less weight to the circular.

That the Secretary of State departed from the Inspector’s assessment of harm to the natural beauty of the area without a site visit, which on uncontradicted evidence was necessary. The Claimants rely upon the doctrine of natural justice and the absence of evidence and, if necessary in the case of the First Claimant, the Human Rights Act 1998 (“HRA 1998”). It is said that the Secretary of State should not have departed from the view of an Inspector’s quasi-judicial determination on such an issue of fact and the positive obligation on States to facilitate the traditional Gypsy lifestyle.

The Secretary of State was wrong to rely upon a different reason for rejecting the grant of a temporary planning permission from that advanced by the Council without giving the Claimants a chance to answer it.

Planning permission for the replacement stable block was granted on 6 August 2008. In September 2009 the Council noticed that a considerable number of lorry loads of soil and rubble had been dumped on the land, and so it wrote to the owners of the site pointing out the need for planning permission for this. The enforcement notice followed on 11 December 2009 and the Claimants appealed.

The Inspector delivered her report on 21 July 2010, but very shortly after the hearing, on 27 May 2010, the Secretary of State notified all local authorities of the government’s commitment to abolish all Regional Strategies. The Inspector invited the parties to make comments on this letter, which they both did. On 6 July 2010 the Secretary of State purported to revoke all Regional Strategies.

On 29 August 2010 the Secretary of State announced that he intended to withdraw the current national planning guidance for gypsy and traveller caravan sites set out in Circular 01/2006 as he regarded it as flawed. On 10 November 2010 The High Court quashed the Secretary of State’s purported revocation of Regional Strategies: see R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government(No. 1)[2011] BLGR 204, on the basis that he had no power to revoke them under existing legislation.

On the same day the Secretary of State made various statements: (i) that the effect of the decision of the High Court was to re-establish Regional Strategies as part of the development plan; (ii) however, he expected Local Planning Authorities and the Planning Inspectorate to have regard to his intention to abolish Regional Strategies via new legislation as a material consideration in planning decisions.

On 7 February 2011 the High Court ruled that the statements made by Secretary of State on 10 November 2010 regarding the materiality of the intention to abolish Regional Strategies were lawful: see R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government(No. 2) [2011] 1 P&CR 22. This decision was upheld by the Court of Appeal on 27 May 2011. Ground 1 of the original application for permission, which concerned the effect of the prospective abolition of Regional Strategies, has now been abandoned. Accordingly, I need not say any more in this judgment about Regional Strategies. However, the effect of the stated intention to revoke and replace circular 01/2006 remains a live issue.

At paragraphs 9-15, the Secretary of State set out the contents of the development plan and some relevant material considerations. The list of material considerations included (at paragraph 12) Circular 01/2006. He then dealt with the main matters in the Appeal. At paragraph 17 he expressed the view that LP Policy RE1 was inconsistent with Circular 01/2006.

In relation to Circular 01/2006, the Secretary of State said, at paragraph 8:

At paragraphs 20-21, the Secretary of State dealt with the issue of the character and appearance of the area in these terms:

Regarding the issue of the need for sites, the Secretary of State indicated at paragraph 22 that he gave considerable weight to the clear and immediate need for pitch provision. At paragraph 23 he said this about the Claimants’ need for a site and their personal circumstances:

Finally, the Secretary of State’s conclusion on temporary planning permission was in these terms, at paragraph 30:

I now turn to the grounds relied on by the Claimants.

This is now the first ground that is the subject of this claim, and it is that the Secretary of State had regard to an immaterial consideration, namely his intention to revoke and replace ODPM Circular 01/2006 and, as a result, gave less weight to that circular, notwithstanding the fact that it was not known which parts of the circular would be replaced with advice that is materially the same as existing advice under the circular.

The Claimants contend that such an approach is palpably irrational. Further, they contend that Secretary of State failed to give intelligible, proper and adequate reasons for his decision to give less weight to the circular.

To make this ground good the Claimants have had to mount a head on the challenge to the decision of Ouseley J in Smith v Secretary of State for Communities and Local Government[2012] EWHC 963 (Admin). Mr Timothy Jones, who appeared for the Claimants, sought to persuade me to shed the scruples of judicial comity and to depart from Ouseley J’s reasoning.

Ouseley J said that, on the basis of the decision of the Court of Appeal in R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government[2011] EWCA Civ 639,it was “indisputable” that a prospective change to planning policy was capable of being a material consideration. With respect, I agree. He then observed that the weight to be given to that consideration was a matter for the Secretary of State, subject to review only if it was irrational.

Ouseley J held that a circular did not have to have been withdrawn before the Secretary of State could give less weight to it. At paragraph 19 he said:

Ouseley J continued, at paragraph 20:

However, Ouseley J did see greater force in the argument that for a decision-maker to say simply that he was going to give less weight to a circular would not in itself explain his approach to the balancing exercise between the weight being given to the circular and the weight being given to other factors, because the reader would have no means of knowing which elements of the circular were being discounted.

On this aspect, he concluded (at paragraph 24):

Smith has already been followed by Foskett J in Murphy v Secretary of State for Communities and Local Government[2012] EWHC 1198 (Admin). Counsel for the Claimant in that case conceded (on the basis of the decision in Cala) that he was no longer able to argue that it was unlawful for the Secretary of State to have regard to his intention to revoke Circular 01/2006. Foskett J also rejected arguments that the Claimants should have had the opportunity to respond to the change in the policy background.

In paragraph 20 of his skeleton argument Mr Jones submitted:

Whilst I see the force of these observations, and those of Ouseley J at paragraph 24 of his judgment in Smith, I am inclined to take a rather more simplistic approach to the problem. Suppose a decision maker says that both policies A and B, each of which points in a different direction, are entitled to significant weight but, on balance, he considers that the approach of policy A should prevail in the present case. That seems to me to be a valid planning judgment. It is a value judgment which may, in the end, be largely a matter of impression. I do not see why he should be expected to explain precisely which aspects of each policy have been given more weight and which less.

At a more basic level it is a little like comparing the architectural drawings for two proposed buildings and concluding that one is a more handsome building than the other. This again is a value judgment, and one that would probably defy any attempt at justification by detailed reasons. In the same way, whilst decision-makers frequently use expressions such as "great weight", "significant weight" and "some weight", I am not aware that anyone has ever suggested that these expressions should somehow be quantified: indeed, I cannot think of any way in which one might go about doing so. As Mr Jones himself points out, the expression "substantial weight" can embrace a wide range of degrees of weight.

In this general context, I was reminded by Mr James Maurici, who appeared for the Secretary of State, of the well-known observations of Lord Hoffmann in Tesco Stores v Secretary of State for the Environment[1995] 1 WLR 759, at 780 F-H:

Mr Maurici relied also on Newsmith v SSETR[2001] EWHC Admin 74 (a case concerning a challenge to a planning inspector’s decision), where Sullivan J provided a useful reminder of these key matters in the following terms:

Mr Jones accepted, I think, that if the Secretary of State had said nothing about the proposed revocation of Circular 01/2006, but had just said that, having considered all the relevant considerations and policies, he had concluded that planning permission should not be granted, it might have been difficult to challenge the decision. His point is that, once the Secretary of State says that he is going to give policy A less weight than policy B because policy A is to be withdrawn, he must then explain what aspects of policy A he has assumed might be abandoned in the new policy. In his skeleton argument he put it this way, at paragraph 21:

Further, he submits that if something of this sort is said, the parties are entitled to assume that it has some importance and therefore to expect an explanation.

Whilst I see the force of Mr Jones’s arguments as a matter of logic, it seems to me that they represent the top of a very slippery slope. To revert to my analogy about the drawings for two proposed buildings, I do not consider the fact that the decision-maker said that he was particularly impressed by the design of the windows in set of drawings A means that he then has to comment individually on every other prominent feature of the buildings shown in each of the two sets of drawings.

If decision-makers were expected to give, as it were, marks out of 10 to every factor that they had taken into account, practical decision-making would become impossible. This is particularly so in those cases where a major component of the decision is an aesthetic or other value judgment, which is often the case in planning decisions. In saying this, I do not wish to be taken to be encouraging decision-makers not to give reasons in cases where it is reasonably possible to do so (at least, in not too many words): quite the contrary - I only observe that this may not always be practicable.

However, I would accept that if a decision maker has based his decision on particular assumptions, those assumptions should be set out. But that is not the case here or, at least, there is no indication in the terms of the DL that it was the case.

For these reasons, I decline Mr Jones's invitation to depart from Ouseley J’s reasoning in Smith and, like Bean J, I reject this ground.

This is that the Secretary of State departed from the Inspector’s assessment of harm to the natural beauty of the area without a site visit which, on uncontradicted evidence, was necessary. This is the ground that Bean J considered was reasonably arguable.

However, having had the benefit of excellent arguments on both sides, I do not consider that there is anything in this point. The “evidence” was in the form of an assertion in Ms Heine’s statement that the impact of the development on the character and appearance of the area and its tranquillity were matters that “can only be appreciated on a site visit”. That statement was submitted, in the usual way, by way of exchange with the statement on behalf of the Council. Neither statement was a response to the other.

The inspector visited the site, as the parties no doubt anticipated. I am not aware that there was any suggestion that the site should not be visited, and so the question of whether or not a site visit was necessary - because that was that was the only way in which the impact of the development on the character and appearance of the area could be appreciated - never arose. Thus the Council had no need either to refute or to admit Ms Heine’s assertion.

When the appeal was recovered by the Secretary of State, the parties, both of whom had the benefit of advisers or officers experienced in planning matters, must be taken to have appreciated that the Secretary of State would almost certainly take his decision without visiting the site, either personally or by an official. Counsel, both of whom are also experienced in planning matters, were unable to give an example of a case where there had been such a visit.

The Inspector dealt with the character and appearance of the area, and in particular the extent to which the development could be seen from various points around the site, in some detail at paragraphs 101 to 107 of her report. She identified points from which the site was visible and the extent of the screening provided by the vegetation around it. At paragraph 107 she said:

The Claimants mounted an argument the starting point of which was the assertion that the Secretary of State had departed from the Inspector on a question of fact. But in my judgment that is not a correct characterisation. In R v Secretary of State for the Environment, ex parte Gosport Borough Council[1992] JPL 476, Popplewell J discussed the difference between matters of fact and matters of opinion. He held that the impact of a development was a matter of opinion. He said, at 479:

Whilst I accept that it does not fit neatly into any of the categories of statement considered by Popplewell J, a statement that the impact of a development on the character and appearance of the relevant area and its tranquillity are matters that “can only be appreciated on a site visit” is, in my view, a statement of opinion, not of fact. It is a point on which views could differ.

Accordingly I reject any arguments founded on this premise.

I should point out that when the Secretary of State considered the appeal he had before him, amongst other documents, the statement of Ms Heine which contained the statement in question. In my opinion it was open to him to decide whether or not it was necessary to visit the site or whether there was sufficient material in the photographs identified by the Inspector. This was a matter of judgment for the Secretary of State. It is one that can be impugned only on Wednesbury grounds. I consider that the Claimants have come nowhere near showing that the decision to determine the appeal without visiting the site was unreasonable in that sense.

For these reasons I reject this ground.

This is that the Secretary of State was wrong to rely upon a different reason for rejecting the grant of a temporary planning permission from that advanced by the Council without giving the Claimants a chance to answer it.

I have great difficulty in seeing how this is said to have caused any prejudice to the Claimants. The alternative submission made by Ms Heine in her original statement was that limiting the duration of the permission would limit the long term harm. The Council’s rather unattractive response to this was that there was no reasonable prospect of the necessary additional sites becoming available within the next three years, with the result that any grant of temporary permission would mean that the amenities of the area would be adversely affected “for a number of years”. Ms Heine responded to this (in a letter dated 21 March 2010 to the Planning Inspectorate) by saying that, in that case, she did not see why the Council had not suggested a longer temporary consent of 4-5 years.

It seems to me to be reasonably clear that the Council was asserting that a grant of temporary planning permission - albeit for a period that was a little longer than that contemplated by Ms Heine - would still result in an unacceptable harm to the area.

The Inspector concluded, and the Secretary of State agreed, that the overall need for sites did not outweigh the permanent harm to the national park. However, she concluded that the impact on the character and appearance of the area for a limited period was clearly outweighed by the need for sites generally until alternative sites became available to meet the unmet need.

In these circumstances it seems to me that the whole question of the extent of the harm caused to the area, whether by a grant of permanent permission or by a grant of temporary permission, was in play. The parties had made their respective submissions on these issues and the Inspector, or Secretary of State if the appeal was recovered, had to make his or her own planning judgment on them.

I am unable to see what more Ms Heine might have said to the Inspector if the Council had said in so many words that a temporary permission to the end of 2013 would not be acceptable. She had made her points comprehensively and clearly about the impact of the development on the national park. The question of whether that impact, whether permanent or for a shorter duration, was outweighed by the lack of suitable sites to meet the needs of the Claimants was a matter of planning judgment. The Inspector made hers and the Secretary of State made his.

I therefore reject this ground also. I am fortified in the knowledge that Bean J regarded it as unarguable, but gave permission on this ground and ground 2 only because he was persuaded that ground 3 was arguable.

For all these reasons this appeal fails and must be dismissed.

One cannot but feel some sympathy for the Claimants in their predicament, and I can well understand their wish to live on this particular parcel of land with some of their horses. However, development of this sort always raises difficult issues - as the Claimants must have appreciated when they bought the land.

It is clear that the Council must pursue the problem of finding alternative and suitable sites for the Claimants and other travellers with much more vigour than it has done to date. I trust that it will do so.

I will hear counsel if there are any other matters, such as costs, that cannot be agreed.