Flintshire County Council v R Anthony Jayes
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Lindblom |
| Judgment Date | 15 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1089 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/1340 |
| Date | 15 May 2018 |
and
[2018] EWCA Civ 1089
Lord Justice Lindblom
and
Lord Justice Hickinbottom
Case No: C1/2017/1340
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (PLANNING COURT)
C M G OCKELTON (VICE PRESIDENT OF THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER))
SITTING AS A DEPUTY HIGH COURT JUDGE
Royal Courts of Justice
Strand, London, WC2A 2LL
John Hunter (instructed by Flintshire County Council Legal Services) for the Appellant
Richard Langham (instructed by Jayes Collier LLP) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 2 May 2018
Judgment Approved
Introduction
This is an appeal against the order of C M G Ockelton (Vice President of the Immigration and Asylum Chamber of the Upper Tribunal) sitting as a Deputy High Court Judge dated 21 April 2017 allowing the claim for judicial review brought by the Respondent (“Mr Jayes”), and quashing the decision of the Appellant local planning authority (“the Council”) to grant planning permission to the Interested Party (“Mr Hamilton”) for the continued use of a site known as Dollar Park, Bagillt Road, Holywell, Flintshire (“the Site”) as a residential Gypsy caravan site for a temporary period of five years.
Mr Hamilton, his family and members of the other extended families who occupy the Site are all Gypsies, for whom living in caravans is an integral part of their ethnic identity, recognised by European law ( Commission for Racial Equality v Dutton [1989] QB 783), domestic law (for example, as a protected characteristic under the Equality Act 2010) and the policy of the Welsh Minsters (see, for example, Welsh Assembly Government Circular 30/2007, “Planning for Gypsy and Traveller Caravan Sites” (“WAGC 30/2007”)).
In 2011, Mr Hamilton obtained temporary planning permission for five years to use the Site as a residential caravan site.
In granting the further application in 2016, the Council accepted that the proposal would result in harm to the character of the area and the setting of a nearby Listed Building, Glyn Abbot, which is owned by Mr Jayes; and would thus be contrary to various policies in the development plan. However, as there was an unmet need for Gypsy sites in Flintshire, to refuse permission would make the families (including a number of children) currently occupying the Site homeless, in the sense that they would be itinerant and would have to pitch their caravans on the roadside without any base to access healthcare and education. In the circumstances, bearing in mind that the best interests of children are a primary consideration, despite the identified harm the Council concluded that planning permission should be granted for a further period of five years.
On the judicial review by Mr Jayes, the Deputy Judge found that the Council had erred in law by granting planning permission without having ascertained and evaluated the best interests of the children who lived on the Site (see [31]–[37] of his judgment). On that ground, he allowed the judicial review, and quashed the Council's decision. Although not making formal findings, it is clear that the judge was unimpressed by the other grounds of challenge (see [38]–[39]). None of the other grounds remains in play.
The Council appealed against the Deputy Judge's order; and, on 19 June 2017, Sales LJ granted permission to appeal on essentially one, narrow ground: the judge erred in concluding that the grant of planning permission was unlawful because the Council had insufficient information to justify its conclusion that refusing permission would be disproportionate to rights of the occupants of the Site, particularly the children, under article 8 of the European Convention on Human Rights (“the ECHR”). As a fall back, it is submitted that, even if the information was insufficient, the Deputy Judge nevertheless erred in concluding that he could not be satisfied that the decision would likely have been the same had more information been available.
Before us, John Hunter of Counsel appeared for the Council, and Richard Langham of Counsel for Mr Jayes; and we thank them both for their helpful submissions. Mr Hamilton played no part in the appeal.
The Relevant Law and Policy: Gypsies and Travellers
The Site is, of course, in Wales; and planning is a function devolved to the Welsh Ministers.
Sections 101–102 of the Housing (Wales) Act 2014 (and their predecessors, sections 225–226 of the Housing Act 2004) oblige each Welsh local authority to make a regular assessment of the level of Gypsy and Traveller accommodation provision that is required by those who reside in or resort to its area.
Paragraph 10 of WAGC 30/2007 requires such an assessment to be done as part of the local housing market assessment performed when preparing the relevant Local Development Plan (“LDP”). Where a local housing market assessment has not been concluded, paragraph 12 requires local authorities to assess need for Gypsy and Traveller sites by reference to available data and information. The guidance continues:
“13. Advice on the use of temporary permissions is contained in paragraphs 108–113 of Welsh Office Circular 35/95, “The Use of Conditions in Planning Permissions” [“WOC 35/95”]. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. In cases where there is:
• unmet need and;
• no available alternative Gypsy and Traveller site provision in an area and;
• a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need;
local planning authorities should give consideration to granting a temporary permission where there are no overriding objections on other grounds.
14. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations as part of the LDP. In such circumstances, local planning authorities are expected to take into account the consequences of the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site…”.
Temporary planning permission is in practice only considered in circumstances in which the proposed development does not conform with the provisions of the development plan (see paragraph 5.23 of the Welsh Government Circular 16/2014, “The Use of Planning Conditions for Development Management” (“WGC 16/2014”)).
The Relevant Law and Policy: Children
When a planning authority determines a planning application, section 70(2) of the Town and Country Planning Act 1990 requires it to exercise its planning judgment, taking into account all “material considerations”, i.e. relevant factors. Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that, if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts (including a decision on a planning application), the determination must be made in accordance with the plan unless “material considerations” indicate otherwise.
The determination of what considerations are material is a matter of law; but it is for the relevant planning decision-maker to attribute such weight (if any) as he considers appropriate to each such consideration, and, of course taking into account relevant law and policy guidance, apply his planning judgment as to where the planning merits lie, to grant or to refuse the application.
Although any administrative decision-maker is under a duty to take all reasonable steps to acquaint himself with information relevant to the decision he is making in order to be able to make a properly informed decision ( Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014), the scope and content of that duty is context specific; and it is for the decision-maker (and not the court) to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor ( R (Khatun) v London Borough of Newham [2004] EWCA Civ 55; [2005] QB 37 at [35]). That applies to planning decision-making as much as any other (see, e.g., R (Hayes) v Wychavon District Council) [2014] EWHC 1987 (Admin) at [31] per Lang J, and R (Plant) v Lambeth London Borough Council [2016] EWHC 3324 (Admin); [2017] PTSR 453 at [69]–[70] per Holgate J). Therefore, a decision by a local planning authority as to the extent to which it considers it necessary to investigate relevant matters is challengeable only on conventional public law grounds.
In determining a planning application, a local planning authority is exercising a public function, and is a “public authority” within the meaning of section 6 of the Human Rights Act 1998. It would therefore be unlawful for such an authority to make a decision which is incompatible with a right within the scope of the EHCR, including the article 8 right to respect for family life. Where article 8 rights are in play, they are a material consideration for the purposes of the determination of a planning application.
I will deal with the evidence in due course; but it is uncontroversial that there are several children resident on the Site. The interests of children likely to be affected by a planning decision are not merely a material consideration, as the Supreme Court held in ZH (Tanzania) v...
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