Bryan Rogers v Secretary of State for Levelling Up, Housing and Communities & Anor

This is an application brought by the Claimant for permission to seek a statutory

There is a further application by the Claimant to extend the time for service ofthe sealed s.288 claim form. In relation to the same issue, the First Defendantseeks a declaration that the Court does not have jurisdiction to entertain thes.288 challenge due to the failure to serve a sealed claim form within theprescribed period.

The Claimant originally sought to bring a second challenge pursuant to s.289 ofthe 1990 Act. That was an appeal against the decision of the Inspector to dismissthe Claimant’s appeal against the enforcement notice issued in respect of theLand. For reasons relating to a procedural error, the Claimant accepts that theCourt no longer has jurisdiction to hear the s.289 appeal. The Claimant failed
to serve a copy of the s.289 appeal documents on the Defendants within theprescribed 28-day period and the Court having no power to extend the time forservice. That claim is therefore withdrawn.

The s.288 application was commenced within the 6-week statutory period which

The Claimant was unable to serve the sealed papers upon either of theDefendants within the statutory 6-week period due to the Court not issuing thesealed papers until after expiry of that time limit. The Court did notacknowledge receipt of the documents when they were initially sent on the 18April 2023 and on 2 May 2023, the Claimant’s legal representatives chasedmatters by email. Between 10 May 2023 and 14 June 2023, the Claimant’srepresentatives contacted the court on no fewer than 10 occasions enquiringabout the sealed documents. The Court finally issued the s.289 appeal on the15 June 2023 but the sealed s. 288 claim form was not issued until 11 July 2023.The s.289 documents were served on the second Defendant on 11 July 2023 andon the first Defendant on 12 July 2023.

The Court has the power to extend the time for service of the claim form underCPR r.3.1(2)(a) if application is made. The test to be applied on an application

Carr LJ went on to opine that the rules of the Court apply with equal force topublic interest cases as much as to other types of claims; that there is palpableprejudice to the Defendant of the loss of an accrued limitation defence and thatwhen considering an application for extension it is not appropriate to take anyview on the merits of the claim. Carr LJ concluded that:

I agree with Mr Fry that there is no logical basis for adopting a differentapproach to the determination of extension of time for service applications inplanning statutory review claims than in judicial review claims.

The sealed claim form should have been served by 4 May 2023. It was in factserved on 12 July 2023, almost 10 weeks late. Mr Fry criticises the Claimantfor use of an incorrect form and for not specifying that it was a claim unders.288 of the Act. The claim was however issued on a Part 8 claim from, and itwas accepted by the Court. Whilst the Claimant did not, in terms, impress uponthe Court the urgency of sealing the claim form, the Claimant’s representativeswere entitled to a reasonable expectation that the form would be sealed in atimely manner and that they would be able to serve the sealed form before 4May 2023.

On the 2 May 2023 the Claimant’s representative emailed the Court office tochase matters. The email was marked “high importance”. The deadline of 4May was passed two days later, and the Claimant’s solicitor had still notreceived a sealed form. On the 11 May 2023, in a telephone call, the legalrepresentative was assured that the Court would issue the claim “after lunch”and they were told “not to worry about the date”. A further email was sent on18 May 2023 referring to earlier communications, stating that the papers hadbeen lodged on 18 April and “bearing in mind it is an application for review,there is some urgency”.

On the 22 May 2023 the Claimant’s representative made two telephone calls tothe Court office and received an assurance that the matter would be sent to thecourt lawyer that same day to enable the lawyer to check the claim before issue.Further chasing telephone calls were made on 25 May, 30 May, 7 June and 9June. On the 14 June 2023 the claimant’s legal representative sent an email

In these circumstances I am entirely satisfied that the failure to serve a sealedclaim form in time was due to matters outside the control of the Claimant andhis representatives. The behaviour of the legal representative in continuing tochase the Court for a sealed claim form was reasonable. The delay did not stemfrom the use of an incorrect form. The representative had marked the emailwith the Claim form of ‘high importance’ and they continued to chase matterswhich spoke of the sense of urgency in obtaining a sealed form. It is difficultnot to have sympathy with the Claimant in such circumstances.

Unlike in the Good Law case, the Claimant did not choose to serve an unsealedclaim form on the Defendants. However, that is unsurprising considering theassurances given by the Court that the matter was about to be dealt with.Likewise issue of the application for extension of time came after the expiry ofthe deadline but again, given the focus on obtaining a sealed form and theassurances given, this is unsurprising.

Whilst service took place significantly out of time, having regard to all theunusual facts of this case, I conclude that the Claimant took reasonable steps toeffect valid service but due to matters outside his control and for good reason,his representatives were unable to do so. I therefore exercise the Court’sdiscretion in extending the time for service of the sealed claim form up to andincluding the last date on which the sealed claim forms were served upon theDefendants.

By application dated 8 May 2022, the Claimant sought planning permission for

The application for planning permission was refused for five reasons. The firstreason was due to the proposal representing inappropriate development in theGreen Belt, contrary to local and national planning policies. The second reasonwas related to the demonstrable harm which it was alleged would be caused tothe Green Belt by virtue of harm to openness and permanence of Green Belt, aswell as significant encroachment and landscape harm. The remaining threereasons for refusal relate to harm to the character and appearance of the area;lack of mitigation or protection measures for an ancient woodland and

The Inspector considered the appeal against the refusal of planning permissionat paragraphs 40 to 122 of the decision letter. The main issues were identified
as whether the development would constitute inappropriate development in theGreen Belt; the effect of the proposal on the openness of the Green Belt; theeffect of the proposal on the character and appearance of the site and thesurrounding area; and whether any harm by reason of inappropriateness andother harm would be clearly outweighed by other considerations such as toamount to the very special circumstances necessary to justify a grant of planningpermission.

The Inspector went on to make key findings in relation to each of those issues.It was concluded that the proposed use did constitute inappropriate developmentin Green Belt terms and that it would have a significantly harmful effect uponthe openness of the Green Belt. She went on to conclude that the proposal wouldhave a significantly harmful effect on the character and appearance of the landand the surrounding area.

After going on to consider various other factors, the Inspector set out othermaterial considerations which weighed in favour of the grant of permission.These included the general need for gypsy and traveller accommodation and thelack of a 5-year housing land supply; the lack of alternative accommodation forthe applicant and his family; the personal circumstances of the appellant and hisfamily including the best interests of the children.

At paragraph 101 of the decision letter the Inspector undertakes the requiredbalancing exercise in relation the Green Belt. After summarising her previousfindings, she concludes:

The Inspector then goes on to consider whether a grant of temporary and/or

The Inspector concluded that granting permission on a temporary basis or on apersonal basis did not change the Green Belt balance such that planningpermission should be granted on either of these bases. The Claimant seekspermission to challenge the decision to dismiss the appeal on two grounds,namely that the Inspector erred in her approach to the issue of a temporaryplanning permission and secondly, that the Inspector erred in relation toconsideration of the best interests of the children.

Lindblom J. (as he then was), in Bloor Homes East Midlands Ltd. v. Secretaryof State for Communities and Local Government and another [2014] EWHC754 (Admin) set out several legal principles relevant to s.288 challenges, whichincluded recognition that:

In Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017]EWCA Civ 893, Lindblom LJ sets out the legal principles applicable on

The claimant contends that the Inspector has erred in her approach to the issue

It is for the Inspector, as part of their planning judgment, to attribute the weightto be given to any particular factor in the balancing exercise. Attribution ofweight and assessment of these factors can only be challenged if the conclusionsarrived at are irrational or perverse. It is well-established that the reasons for adecision must be intelligible and adequate as per Lord Brown in South BucksDistrict Council v Porter (No.2) [2004] 1 WLR 1953.

The issue of the nature of the planning balance and the weight to be attributedto various factors was considered in the case of Moore v SSCLG and LondonBorough of Bromley [2013] EWCA Civ. 1194 when the Court of Appealconsidered the lawfulness of the planning balance carried out by an Inspectorwhen assessing temporary planning permission for development in the GreenBelt. The Court of Appeal accepted the earlier observations of Cox J. when shestated:

The decision as to the grant of a temporary planning permission is a matter ofplanning judgment. Mr Fry contends that the case of Moore is distinguishablebecause the Inspector in the Moore case had applied the same balancing exerciseto both temporary and permanent planning permission. However, as thejudgment of Cox J. makes clear, where substantial weight had been attributedto the harm arising from inappropriate development when considering apermanent permission; when one came to consider a temporary planningpermission it was only right that the weight attributed should be reduced due tothe harm existing over a shorter period.

Here, the Inspector has started her assessment with a statement that thesubstantial weight to be attributed to any harm in the Green Belt is the same fora temporary as for a permanent permission. She goes on to acknowledge thatthe effecton openness and harm to character and appearance of the surrounding

Even if Mr Fry is correct, that the first sentence sets out the starting premise andthe second sentence has the effect of adjusting the weight to harm, that reductionwould appear to only apply to the harm by way of openness (and harm tolandscape character and appearance). The decision is silent as to any reductionto the harm by way of inappropriate development.

Mr Fry points out that the National Planning Policy Framework makes nodistinction between temporary and permanent permission. The Frameworksimply states that substantial weight should be given to any harm to the GreenBelt. However, if the weight to various factors remained unchanged in relationto both a balancing exercise for a permanent planning permission and one for atemporary planning permission, what would be the point in conducting thesecond balancing exercise to consider a temporary planning permission?

The second complaint against the Inspector’s decision is in relation toconsideration of the duration of the temporary permission. The Inspector wenton to consider the duration of any temporary planning permission. At paragraph111 she records the Council’s request for a temporary period up to 31 March2025, on the basis that this reflected the Council’s timetable for expectedadoption of its DPD. At 112 of the decision letter, the Inspector sets out herreasons for concluding that it could not be said that there was a reasonableexpectation of a change in circumstances within the suggested period.

The Inspector was entitled to come to that conclusion in the exercise of herplanning judgment but, having rejected the Council’s suggestion of 2 yearsbeing a period in which circumstances might change, she did not go on toconsider a longer period (allowing for slippage of the DPD adoption timetable)and coming to a view on the acceptability of a longer period.

For these reasons I consider that ground 1 is plainly arguable as to whether theInspector has taken a lawful approach to the consideration of the grant of atemporary planning permission and having rejected the Council’s suggestion ofa 2-year period, failing to provide reasons as to why a longer period would notbe appropriate.

The second ground rests upon the Claimant’s contention that the Inspector erredin her approach to the best interests of the children. The Supreme Court inZH(Tanzania) v SSHD [2011]UKSC 4, as confirmed in Zoumbas v SSHD[2013] 1 WLR 3690 at [10], emphasised that the best interests of children are aprimary consideration in cases such as this, that is where their interests are beingadversely impacted upon, and no other factor should be given more weight.

In Dear v SSCLG [2015] EWHC 29 (Admin) it was accepted on behalf of theSSCLG [44] that the correct starting point in Green Belt cases is to attachsubstantial weight to the best interests of the child, according with the

The Inspector deals with the question of personal circumstances of the appellantand his family at paragraphs 93-98. She acknowledged that the personalcircumstances of the Claimant and his family...”including the best interests ofthe children, weigh significantly in favour of the development”.

The Inspector, in a separate paragraph, says the following:

Finally, at paragraph 117 the Inspector, in a section entitled “Human Rightsincluding the Best Interests of the Children” goes on to address theconsequences of dismissal of the appeal and the significant interference withtheir Article 8 rights.

At paragraph 91 of the Decision Letter the Inspector accepts that there was no

The Inspector acknowledges at paragraph 118 that there is a lack of alternativeaccommodation for the family; that the children would benefit from a settledbase in terms of accessing education and other support. She recognises that theprospect of a roadside existence would have significant implications for familylife and could lead to separation of the wider family members. Whilst she usedthe term ‘the potential of a roadside existence’, I am satisfied that she wasreferring to a situation in which the appeal failed.

On reading the decision letter as a whole, the Inspector gave clear and detailedconsideration to the best interests of the children, identifying them as a primaryconsideration and recording that no other considerations are inherently moreimportant. The Inspector expressly grappled with the issue, identifying that itwas in the best interests of the children to have a settled base. Her starting pointwas that the best interests of the children were a significant factor. She went toapply her planning judgment and concluded that the personal circumstances ofthe family, the best interests of the children and other factors in support did not

I therefore grant permission on ground 1 and refuse permission on ground 2.