Felix Cash v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 04 August 2015 |
| Neutral Citation | [2015] EWHC 2357 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1401/2015 |
| Date | 04 August 2015 |
[2015] EWHC 2357 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Patterson DBE
Case No: CO/1401/2015
Anthony Crean QC and Michael Rudd (instructed by Hawksley's Solicitors) for the Claimant
Stephen Whale (instructed by Government Legal Department) for the First Defendant
No appearance or representation for the Second Defendant
Hearing date: 28 July 2015
Introduction
On 11 February 2015 the Secretary of State through his inspector, Diane Lewis BA Hons MCD MALL MRTPI, dismissed an appeal by the claimant against the decision of the second defendant in which it refused permission for the use of land at Pineridge Park Homes, Nine Mile Ride, Wokingham for the stationing of 22 mobile homes for residential purposes together with the formation of additional hard standing.
The appeal site is located in the countryside to the south of the town of Wokingham. The application was made under section 73A of the Town and Country Planning Act 1990 (TPCA) for development already carried out on an area of some 0.67 hectares. The 22 mobile home pitches are located around the perimeter of the site and are served by a central access road.
The appeal proceeded by way of public inquiry which sat for nine days.
The second defendant had previously issued two enforcement notices against unauthorised development at the appeal site. Notice one was issued on 26 June 2009 against the installation of services and utilities and the creation of 22 areas of hard standing and the other, notice two, was issued on 11 February 2010, against the change of use of the land to use for the stationing of mobile homes for the purposes of human habitation and the erection of a timber fence.
In a decision letter dated 1 April 2011 another inspector (Paul Morris Dip TP MRTPI) upheld the two enforcement notices, subject to correction and variation, and dismissed the application for planning permission under s 174(2)(a) TCPA. Challenges to the decisions were unsuccessful and the enforcement notices took effect. The period for compliance ended on 12 June 2015.
Notice one requires the removal of 22 areas of hard standing, the services and utilities associated with the development, all associated debris and the restoration of the land to its condition before the breach of planning control took place.
Notice two requires the cessation of the use of the land for the stationing of mobile homes and the removal of the mobile homes, the fence and all associated debris from the land.
A hearing took place on 23 October 2014 into an application by the claimant for declarations that the two enforcement notices were nullities. Elisabeth Laing J concluded that that claim failed because it was an abuse of process. She refused permission for the claim to continue as an application for judicial review on the grounds of:
i) Inordinate and unexplained delay; and
ii) Lack of merit.
On 28 October 2014 the public inquiry into the claimant's appeal under section 78 TCPA against the refusal of planning permission opened.
On 11 February 2015 the decision letter was issued dismissing the claimant's planning appeal. On 23 March 2015 the claimant issued the application the subject of these proceedings.
Grounds of Challenge
The claimant relies upon four grounds of challenge as follows:
i) That the first defendant has made a fundamental and irretrievable error in the structure of decision making in that he (through his inspector) has failed to accord the impact of a negative decision on the lives of the children resident on the land in the planning balance required by law;
ii) The decision letter is Wednesbury unreasonable;
iii) The decision on proportionality is wrong and wrongly taken;
iv) The inspector has misunderstood or erred in law in making her decision on proportionality by misunderstanding the effect of the authorities relied upon by the claimant.
The claimant agreed that the central ground was whether the first defendant had erred in law in his approach to the interests of the children on the appeal site. The claimant agreed also that grounds three and four should be taken together as a proportionality claim.
Legal Framework
The law on challenges under section 288 is not controversial. It was set out as "seven familiar principles" in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at [19] by Lindblom J as follows:
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953, at p.1964B–G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F–H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E–H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."
The principles for a court to apply in dealing with the best interests of children are summarised in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10]:
"(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative...
To continue reading
Request your trial