Ann Dear v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
JudgeHer Honour Judge Belcher
Judgment Date19 January 2015
Neutral Citation[2015] EWHC 29 (Admin)
Docket NumberCase No: CO/3367/2014
CourtQueen's Bench Division (Administrative Court)
Date19 January 2015

[2015] EWHC 29 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before:

Her Honour Judge Belcher

Case No: CO/3367/2014

Between:
Ann Dear
Claimant
and
Secretary of State for Communities and Local Government (1)
Doncaster Metropolitan Borough Council (2)
Defendants

Mr Marc Willers QC (instructed by Lester Morrill) for the Claimant

Mr Stephen Whale (instructed by The Treasury Solicitor) for the First Defendant

Hearing date: 11 December 2014

Her Honour Judge Belcher
1

This is a statutory application pursuant to Section 288 Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant dated 10 June 2014 in which he dismissed a planning appeal brought by the Claimant. The Second Defendant did not appear before me and has taken no active part in these proceedings. References in this judgment to the trial bundle will be by the capital letter "B" followed by the relevant page number or numbers. References in this judgment to the authorities bundle will be by the capital letters "AB" followed by the relevant Tab number. The authorities bundle is not paginated and any reference to page numbers will therefore be to the internal pagination of the relevant law report.

The Facts

2

This case concerns a site of approximately 4 hectares at Ten Acre Farm, Norton Common Road, Norton, Doncaster ("the Site"). The site is a strip of agricultural land within the South Yorkshire Green Belt. The Claimant is a Romany Gypsy and it is agreed that she and her family fall within the planning definition of Gypsies and Travellers. They moved onto the Site in April 2009. The Claimant and her husband sought retrospective planning permission for their use of the Site which was refused by the local planning authority. On 14 December 2009 planning permission was granted on appeal for the change of use of the land to mixed use for keeping horses and as a residential caravan site. The residential use was subject to conditions limiting that use to a period of 3 years, and requiring that no more than 3 caravans should be stationed on the land at any one time, of which no more than 1 should be a static caravan or mobile home.

3

On 13 October 2012 the Claimant and her husband sought further planning permission for mixed use for keeping horses and as a residential caravan site, but without the previous restrictions on the residential use. On 7 October 2013, the Second Defendant, Doncaster Metropolitan Borough Council, refused that application. The Claimant appealed and a Hearing was held on 22 January 2014. On 23 January 2014 the Secretary of State for Communities and Local Government ("the Secretary of State") recovered the appeal for determination by himself, because it relates to a traveller site within the Green Belt. On 4 March 2014, the report of the Planning Inspector (Bern Hellier) to the Secretary of State was completed (B19–36). It recommended dismissal of the appeal. On 10 June 2014 the Secretary of State dismissed the appeal (B13–17).

4

In these proceedings the Claimant challenges only the Secretary of State's refusal of temporary planning permission. It is of relevance to the challenge that on 2 April 2014 a planning inspector, Mr Richard Clegg, granted temporary planning permission on appeal for a site on the south east side of Flashley Carr Lane, Moss, Doncaster following a 7 day inquiry ("the Flashley Carr Lane Decision"). The permission granted in that case was for change of use of land to a gypsy site for a limited period of 4 years from the date of the decision (B134–152). I shall consider that decision in more detail below.

The Law

5

By S288 TCPA 1990 an application may be made to the Administrative Court in respect of a decision by or on behalf of the Secretary of State on the grounds either (i) that it was not within the powers of the Act and/or (ii) that any relevant requirements have not been met, leading to substantial prejudice to the applicant's interests. If the grounds of challenge are made out, this Court's powers are limited to quashing the decision.

6

I adopt from Mr Willers' skeleton argument (slightly amended at iv below) the following agreed propositions of law which the court must bear in mind when considering applications under S288 TCPA 1990:

i) The decision maker is not writing an exam paper and his decisions must be read in good faith (see AB Tab 1: South Somerset DC v Secretary of State for the Environment [1993] 1 PLR 80 at 83E-G and 87F-G);

ii) Questions of planning judgment are for the decision maker and not for the Court which should not substitute its own judgment (see AB Tab 2: City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447 at 1458G-1459D);

iii) The weight to be attached to material considerations and matters of planning judgment are within the exclusive jurisdiction of the decision maker (see ELS Wholesale (Wolverhampton) v Secretary of State for the Environment (1987) P&CR 69);

iv) The requirement to take account of relevant matters is a requirement to take into account a matter which might cause the decision maker to reach a different conclusion to that which he would reach if he did not take it into account – by "might" is meant that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision (see AB Tab 3: Bolton MBC v Secretary of State for the Environment (1990) 61 P&CR 343 at 352–353)

v) The duty on a decision maker is to have regard to every material consideration; he need not mention them all but it is necessary for the decision maker to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues (see AB Tabs 4 and 5: Bolton MDC v Secretary of State for the Environment [1995] 3 PLR 37 and South Bucks DC v Porter (No. 2) [2004] 1 WLR 1953 per Lord Brown at paragraph 36)

vi) Reasons must be proper, intelligible and adequate – they can be briefly stated but must not give rise to a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision making process, but such an adverse inference will not be readily drawn (see AB Tab 5: South Bucks DC v Porter (No. 2) [2004] 1 WLR 1953 per Lord Brown at paragraph 36);

vii) For a decision letter to be perverse it must be one which no reasonable person in the position of the decision maker, properly directing himself, could have reached (see AB Tab 6: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P&CR 26. See also Associated Picture Houses v Wednesbury Corporation [1948] 1KB 223 and Fenton v SSETR [2000] JPL 1179);

viii) If the court identifies an error of law it has a discretion whether or not to quash the decision – the error of law must materially affect the decision taken (see AB Tab 3: Bolton MBC v Secretary of State for the Environment [1990] 61 P&CR 343).

To the above list Mr Whale added the following propositions:

ix) It is only in limited circumstances in which it can be contended that a decision maker has erred in law by reference to a point not raised before him (see AB Tab 12: Humphris v Secretary of State for Communities and Local Government [2012] EWHC 1237 (Admin) at paragraph 23, per Ouseley J);

x) A decision maker's conclusions on permanent planning permission should be read across into the reasoning on temporary planning permission (see AB Tab 13: Delaney v Secretary of State for Communities and Local Government [2012] EWHC 1303 (Admin) at paragraphs 45 and 54: upheld by the Court of Appeal: AB Tab 14)

7

A planning authority must determine an application for planning permission in accordance with its development plan for its area unless material considerations indicate otherwise. In this case it is agreed that the following national guidance was relevant to the determination of the Claimant's application for planning permission: the guidance on protecting Green Belt land contained in the National Planning Policy Framework ("the Framework") and the Planning policy for traveller sites ("the PPTS"). I was not provided with a copy of the Green Belt guidance but it was accepted that it is accurately quoted and summarised in Lewis J's judgment in Connors and Others v Secretary of State for the Environment [2014] EWHC 2358 (Admin) (AB Tab 16) in the following terms:

"16. Section 9 of the Framework deals with protecting Green Belt Land. Paragraphs 79 and 80 provide as follows:

"79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

80. Green Belt serves five purposes;

• To check the unrestricted sprawl of large built up areas

• To prevent neighbouring towns merging into one another;

• To assist in safeguarding the countryside from encroachment;

• To preserve the setting and special character of historic towns; and

• To assist in urban regeneration, by encouraging the recycling of derelict and other urban land.

18. Paragraphs 87 and 88 of the Framework provide as follows:

"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in exceptional circumstances.

88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. "Very special circumstances" will not exist unless the potential harm to the Green Belt by reason of the inappropriateness,...

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