R Cash v Secretary of State for Communities and Local Government Wokingham Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom |
| Judgment Date | 02 February 2016 |
| Neutral Citation | [2016] EWCA Civ 854 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2105/3022 |
| Date | 02 February 2016 |
[2016] EWCA Civ 854
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION-PLANNING COURT
(MRS JUSTICE PATTERSON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lindblom
C1/2105/3022
Mr A Crean Q.C. (instructed by Hawksleys Solicitors) appeared on behalf of the Claimant
The Defendants did not appear and were not represented
The applicant, Felix Cash, seeks a reconsideration of his application for permission to appeal against the order of Patterson J., dated 4 August 2015, dismissing his application under section 288 of the Town and Country Planning Act 1990 challenging the decision of the inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, dated 11 February 2015, dismissing his appeal against the refusal by the second respondent, Wokingham Borough Council, of his application for planning permission for the use of land at Pineridge Parks Homes, Nine Mile Ride, Wokingham for the stationing of 22 mobile homes for residential purposes and the formation of additional hardstanding. Permission to appeal was refused on the papers by Stephen Richards L.J. on 5 November 2015.
The appeal site is in the countryside to the south of Wokingham. It has a long planning history. The council had in 2009 and 2010 issued enforcement notices respectively against the installation of services and utilities and the creation of 22 areas of hardstanding, and against the change of use of the land to its use for the stationing of mobile homes for residential purposes, having previously refused planning permission for such development.
Appeals against the refusal of planning permission and against the 2010 enforcement notice failed. Legal challenges to those decisions failed. The notices then took effect. In October 2014 Elisabeth Laing J. dismissed applications for declarations that the two enforcement notices were nullities.
The inspector whose decision was challenged before Patterson J. held an Inquiry into Mr Cash's appeal over nine days in October 2014, and carried out site visits on 4 November and 10 December 2014. At the inquiry she heard evidence from several expert witnesses on either side and also from 16 residents of mobile homes on the site, and from the "Park Manager". Four of the "households" concerned were not able to produce a witness to give evidence on their behalf at the inquiry but the inspector received and considered witness statements submitted by them.
In her decision letter, at paragraph 22, the inspector identified eight main issues in the appeal before her, the last of which was:
"Whether a refusal of permission in the circumstances of the case would be necessary and proportionate when assessed in the context of the provisions of the Human Rights Act 1998 and the requirement to safeguard and promote the welfare and well-being of children resident on the site".
In paragraph 158 of her decision letter the inspector concluded, in the light of her analysis of the first seven main issues that"[the] contribution the development would make to meeting housing needs is not of sufficient [weight] to overcome the objections – the failure to deliver a good quality standard of development in an appropriate location", and that "… subject to human rights considerations … The mobile home is not a sustainable form of development and is contrary to the development plan and the [National Planning Policy Framework]".
The inspector went on to consider the "Human Rights" issue in paragraphs 159 to 231 of her letter. She concluded, in paragraph 224, that "[the] interference with the private rights of residents would be necessary and proportionate when balanced against the wider public interest", and that "[to] withhold a permanent planning permission would be justified". She went on to conclude, in paragraph 231, that a temporary planning permission was "not an acceptable solution when balanced against the wider public interests". In this part of her decision letter she undertook a proportionality assessment, in the light of the decisions of the Court of Appeal in Collins v Secretary of State for Communities and Local Government & Fylde Borough Council [2013] EWCA Civ 1193; the first instance decisions in AZ v Secretary of State for Communities and Local Government and South Gloucestershire District Council [2012] EWHC 3660 (Admin); and Stevens v Secretary of State for Communities and Local Government and Guildford Borough Council [2013] EWHC 792 (Admin). She considered, among other things, the "[individual] or family interests" of each family or household (paragraphs 164 to 176), focusing in particular, on the question of "[alternative] accommodation" (paragraphs 165 to 169), the "[best] interests of the children" (paragraph 170) and for each of the families' or households' "[structured] proportionality assessments" in respect of the rights of the residents of the site and their children under article 8 of the European Convention on Human Rights (paragraphs 180 to 223). I shall come back in a moment to the salient parts of those conclusions.
Before the judge it was argued that the inspector had made a fatal error in her decision, in that she had failed to accord the impact of a decision to dismiss the appeal on the lives of the children living on the site, its proper weight in the planning balance, as the law requires; that the decision was irrational; and that the inspector's consideration of, and conclusions on, the question of proportionality were flawed, betraying a misunderstanding of the relevant jurisprudence. The judge rejected the challenge on all grounds.
In Mr Cash's grounds of appeal against the judge's order the focus is on the judge's consideration of the inspector's approach to the best interests of the 23 children living on the site. In summary, the grounds as pleaded assert that the judge erred in her consideration of the relevance and significance of the best interests of the children when affected by the dismissal of Mr Cash's appeal and, in particular, that she failed to apply the principles apparent in the Supreme Court's decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. It is contended that the judge, in common it is said with other judges at first instance, diluted the importance of this issue, contrary to article 3 of the United Nations Convention on the Rights of the Child. It is also asserted that...
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