R (Baker) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | DEPUTY HIGH COURT JUDGE |
| Judgment Date | 26 September 2007 |
| Neutral Citation | [2007] EWHC 2370 (Admin) |
| Docket Number | CO/10402/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 September 2007 |
[2007] EWHC 2370 (Admin)
His Honour Judge Mole QC
(Sitting as a Deputy High Court Judge)
CO/10402/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
MR STEPHEN COTTEL (instructed by South West Law of Bristol) appeared on behalf of the Claimant
MR PHILIP COPPEL (instructed by Treasury Solicitor) appeared on behalf of the Defendant
: This is an appeal under Section 288 of the Town and Country Planning Act 1990 to quash a decision letter dated 8 November 2006. In that decision the inspector, appointed by the Secretary of State, dismissed three appeals. The appeals were (a) by Mr Mark Baker, (b) by Debbie Ross and Pamela Maughan and (c) by Lucy Owen. They all appealed against the refusal of the London Borough of Bromley to grant planning permission for the retention of a varying number, depending upon the site, of touring caravans or mobile homes on three separate sites occupied by gypsy families of which the appellants were members.
All three appeal sites lie within Waldens Farm, Orpington, Kent. This is described in the decision letter as a 30-hectare estate of former orchards sub-divided in 1974 into about 800 small leisure plots. It was stressed to me that the sites are all in different positions with, in some respects, different characteristics and circumstances. It is evident that the inspector, to whom this was also stressed, dealt with them separately. I deal with them separately, too, where the circumstances warrant it. They have several important features in common.
The inspector recorded the background information in relation to each site at the start of her decision letter, and I shall quote that. At paragraph 3, she said:
"Appeal A
3 Plot 270 lies on the western edge of Waldens Farm and has a road frontage onto Waldens Road. In June 2003, a temporary 2-year planning permission was granted for residential use as a gypsy site. The permission was personal to the previous occupier of Plot 270, Phoebe Lee. This permission expired in June 2005. Phoebe Lee left the site and gave it to Mr Baker, the appellant in Appeal A. He has been in residence with his wife and 4 sons for nearly 2 years. An Enforcement Notice and a Breach of Condition Notice were served on him in 2006."
I depart from the decision letter which has now become out of date.
I was informed, and shown by a decision letter dated 9 May 2007, Mr Baker's appeal on ground (g) against that enforcement notice succeeded to the extent that the period for him to comply with the enforcement notice was extended to 18 months.
Paragraph 4 deals with Appeal B:
"4 Plots 473-474 lie near the south eastern corner of Waldens Farm. Temporary 2-years planning permissions, personal to members of the Gavin family, were granted in June 2003. The Gavins left the site, and gave the plots to the appellants in Appeal B, Debbie Ross and Pamela Maughan. The 2 plots have been sub-divided into 3 separate plots. Hardstandings and fencing are in breach of the Article 4 Direction that was made when the Waldens Farm orchards were sold in 1974. Debbie Ross and Pamela Maughan are also in breach of Injunctions that took effect in 2004. the Injunctions restrain the stationing of caravans, buildings and structures on Waldens Farm. Committal Orders have been made against the appellants. These have been appealed.
Appeal C
5 Plot 457 is about 20m from Plots 473-474. In common with Appeal B, a temporary 2-year planning permission personal to a member of the Gavin family was granted in June 2003. The permission expired in June 2005. The appellant in Appeal C, Lucy Owen, was given the plot by the member of the Gavin family who had previously occupied it. Lucy Owen is in breach of the Article 4 Direction, and the Injunctions referred to above. A Committal Order has been made against her, and this has been appealed."
It would be helpful if I start by setting out briefly the law that relates to such an appeal as this. An appeal under Section 288 is made, or may be made, first on the grounds that it is not within the powers of the deciding authority. In other words, in this case, that the inspector made a mistake of law. A mistake of law involves either the inspector taking into account something that she should not have taken into account or failing to take into account something important which she should have taken into account or, perhaps, misunderstanding and misapplying the policy that she was obliged to apply. It also includes the inspector acting in a way that is described as Wednesbury unreasonable which means acting perversely in defiance of common sense on the basis of the evidence that is in front of her and reaching a decision that that evidence, properly understood, really does not permit.
I stress that what is not an error of law is any different view that might be taken on the planning merits. Planning merits and the planning judgment is entirely a matter for the inspector. As Lord Hoffmann said in Tesco v Secretary of State [1995] 1 WLR 759, 770:
"If there is one principle of planning law more settled than any other it is that planning judgment is within the exclusive province of the local planning authority or the Secretary of State."
I add simply "or the inspector" where the decision is delegated to him.
More recently, the point has been helpfully stressed by Mr Justice Sullivan in R (Newsmith Stainless Ltd) v Secretary of State for the Environment Transport and the Regions [2001] EWHC Admin 74 where, at paragraph 6, Mr Justice Sullivan said:
"6 An application under Section 288 is not an opportunity for a review of the planning merits of an inspector's decision. An allegation that an inspector's conclusion on the planning merits is perverse is, in principle, within the scope of a challenge under Section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a re-run of the argument on the planning merits.
7 In any case where an expert tribunal is the fact-finding body the threshold of Wednesbury unreasonableness is a difficult obstacle to surmount. That difficulty is greatly increased in most planning cases because the inspector is not simply deciding questions of fact. He or she is reaching a series of planning judgments. For example, is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport, etc? Since a significant element of judgment is involved, there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
8 Moreover the inspector's conclusions will invariably be based not merely upon the evidence heard at the Inquiry or an informal hearing or contained in written representations, but, and this will often be of crucial importance, on the impressions received on the site inspection. Against this background, an applicant alleging an inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task. It might be thought that basic principles set out above are so well known that they do not need re-stating but the claimant's challenge in the present case though couched in terms of Wednesbury unreasonableness is, in truth, a frontal assault on the inspector's conclusions on the planning merits of this Green Belt case."
The second leg of a challenge under Section 288 is based upon the requirement that the relevant requirements need to be complied with. If any of the relevant requirements are not complied with and the applicant is substantially prejudiced thereby, this forms a proper ground of challenge.
The most important relevant requirement in this and in many cases is the requirement that the inspector should give comprehensive and comprehensible reasons. Comprehensive means dealing with those points that need to be dealt with. It does not mean that the inspector must refer to absolutely everything or every matter that was argued before her. The matter is clearly and authoritatively expressed by Lord Brown in the well known case of South Buckinghamshire District Council v Porter Number 2 [2004] 1 WLR 1964, paragraph 36 where he said:
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues disclosing how any issue of law or fact was resolved. Reasons can be briefly stated with the degree of particularity required depending entirely on the nature of the issues falling for decision.
The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inferences will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising...
To continue reading
Request your trial
-
R and Others v Secretary of State for Justice
...149 (or the legislative equality provisions which preceded it). 98 In a leading authority in this area, R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 (concerning the application of one of the preceding equality provisions, section 71 of the Race Re......
-
R (AC) v Berkshire West Primary Care Trust Equality and Human Rights Commission (Intervenor)
... ... “Gender Dysphoria is a psychological state whereby a person demonstrates dissatisfaction ... Patients should be referred initially to a local NHS Consultant Psychiatrist. 2. Access ... The PCT is allocated a budget by the Government and needs to meet all costs out of that budget, ... 44 In R (Baker) v Secretary of State for Communities and Local ... ...
-
R (Hajrula) v London Councils
... ... City of London pursuant to powers under the Local Government Act 1972 and the Local Government Act ... priorities will have an impact on the communities the schemes support. In proposing that the ... 385 at para. 24, R v Secretary of State for Social Services ex parte AMA [1986] ... Court of Appeal, given by Dyson LJ in R(Baker and Others) v the Secretary of State and the ... ...
-
Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Another
... ... Robert Jay QC (instructed by Baker and McKenzie LLP ) for the Appellant ... ...