R Iqbal v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Allan Gore QC,JUDGE |
| Judgment Date | 02 November 2017 |
| Neutral Citation | [2017] EWHC 2953 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/328/2017 |
| Date | 02 November 2017 |
[2017] EWHC 2953 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
HIS HONOUR JUDGE Allan Gore QC
(Sitting as a Judge of the High Court)
CO/328/2017
and
THE APPELLANT appeared in Person.
Mr A Mills (instructed by Government Legal Department) appeared on behalf of the Respondent.
THE INTERESTED PARTY did not appear and was not represented.
By an order dated 13 th April 2017, Gilbart J dismissed an application for permission to appeal under s.289 of the Town & Country Planning Act 1990 save for one narrow ground on which he granted permission and which now is before me.
The background is as follows. The appellant is a major in the Regular Army. For as long as is relevant to this appeal he has lived and still lives at a family home 14 Wooburn Green Lane, Beaconsfield, which lies within the so-called green belt. Prior to that he lived in Army accommodation that the family did not regard as suitable to their family needs.
There is no longer any dispute that he built extensions to the home without planning permission and therefore in breach of planning law. So it is that the second respondent, as it was entitled to do, resolved to issue an enforcement notice which was dated 27 th April 2016 which took effect on 8 th June 2016 and which gave six months for compliance. A retrospective application for planning permission to regularise the position in relation to the extensions was refused. An appeal against that decision failed before the inspector, was challenged by application for permission to seek judicial review and by way of appeal, which applications were refused at an oral hearing on 12 th April 2017 by Gilbart J and so that aspect of the case, so to speak the aspect dealing with the planning merits in this case, is ended.
The compliance required in the enforcement notice was the demolition of the unauthorised development, the reinstatement of what was described as the existing dwelling and the removal of materials, debris, plant and equipment associated with that obligation.
The Town & Country Planning Act 1990 s.174(2) identifies what are grounds upon which an appeal against an enforcement notice may be pursued. The appellant did appeal, invoking four of the seven grounds of appeal specified. The appeal was heard by one of the first respondent's inspectors on 15 th November 2016. He dismissed all grounds of appeal except one in that, pursuant to s.174(2(g) which renders justiciable on appeal what is the period reasonably to be allowed for compliance with the notice, he substituted the extended period of 12 months for the period of six months specified in the notice. His decision is dated 12 th December 2016. It is essentially 11 pages long and extends to 58 detailed paragraphs.
Dissatisfied with that outcome, the appellant sought permission to appeal to this court. All grounds were refused save what he was permitted to advance in relation to ground 4, which he was permitted by the order of Gilbart J to advance, and “only in relation to and to the extent of a claim that the decision of the first respondent's inspector erred as respects the application of Art.8 of the European Convention on Human Rights to ground (g) of the appeal brought by the appellant under s.174 of the Town & Country Planning Act”. That is the matter that is before to me today.
This brings me to remind myself of several important principles that apply to appeals such this. First, the proper approach to scrutinising the decisions of planning inspectors is not to deploy detailed forensic analysis such as would, for example, be deployed by lawyers or judges in construing a statute or set of regulations. Instead, it is incumbent on this court to consider and review the totality of the decision and the reasoning contained in it.
Secondly, the jurisdiction of this court is a review jurisdiction. It is not for me to substitute my views of the merits of the appeal for those of the inspector. As was observed by Hickinbottom J (as he then was) in Stevens v Secretary of State for Communities and Local Government [2014] EWHC 792, para.87, in the specific context of an Art. appeal against a planning decision as is the position in this case:
“87 …..
i. The application does not require a full merits review. It requires review on traditional judicial review grounds, together with consideration of whether the resulting decision engages article 8 and, insofar as it does, whether the adverse impact of the decision on the article 8 rights engaged is proportionate to the legitimate aims sought to be protected (including both the public interest, and the rights and interests of other individuals).”
The significance of this observation is that this court is limited to allowing an appeal only on public law grounds, namely that there was an error of law or a failure to take into account relevant material or the taking into account of irrelevant material or that the decision lay outside the generous ambit of decision-making discretion that was allowed and therefore was perverse or a decision that no reasonable decision-maker could have arrived at.
Thirdly, repeated in the same case but derived from a long list of binding appellate decisions with which I will not burden this judgment, it was observed by Hickinbottom J in the same paragraph that –
ii) “In considering whether the decision breached relevant article 8 rights, the court is required to consider the merits, with appropriate scrutiny, but it should do so bearing in mind that the inspector's function, assigned to him by the statutory scheme and ultimately Parliament, is to consider the merits of all material considerations, including any article 8 rights that are engaged. The inspector is an expert and experienced, and acts in a quasi-judicial capacity, which each warrant a wide margin of discretion. He is acting in an area of social policy, which in itself attracts a wide margin of discretion. As a result, considerable deference ought to be attached to his conclusion.
iii) Proportionality is a question of substance and not form. If the inspector has clearly engaged with the article 8 rights in play, and considered them with care, given his wide margin of discretion, it is unlikely that the court will interfere with his conclusion on grounds of proportionality. If he has not – even if he has not referred to article 8 rights at all – on usual principles, the court will not quash his decision if his error is immaterial. If his error is material, then it is open to the court to find that the interference with the relevant human rights is in any event proportionate; or quash the decision.”
Fourthly, as was observed by Ouseley J in Humphreys v Secretary of State for Communities and Local Government [2012] EWHC 1237, at para.23, there are only limited circumstances in which it can be contended that a decision was open to challenge on public law grounds by reference to a point that was not raised before him.
Fifthly, in undertaking what I have described as the review on public law grounds of the decision of the inspector that review is undertaken by reference to the evidence and the facts as they existed on the date of the decision under challenge and not in the light of fresh evidence or new material and events that had occurred in the interval of time between the inspector's decision and the appeal court's review of it.
With that guidance as to the applicable principles in mind, I turn to this appeal. In amended grounds of appeal amplified by skeleton argument and oral submission by the claimant/applicant as a litigant in person, which I accept places him at some difficulty and disadvantage compared to a public authority represented by a legal representative, the appellant complains that, first, the inspector did not fully consider the Art.8 grounds when considering how long to allow for compliance with the enforcement notice.
Secondly, he complains that the inspector did not fully consider the full impact of his decision on the children of the family because the available move back into military accommodation would remove the children from many settled arrangements in their family life available if their home could be maintained, or maintained for longer, rather than if the home had to be sold and the family face bankruptcy, as is alleged to be the likelihood if the 12-month period for compliance remained in place.
Thirdly, he submits that the inspector therefore, neither fully nor appropriately, considered either the necessity of enforcement or the proportionality of the enforcement decision when confining the time allowed for compliance to only 12 months rather than allowing the initial contention of two to three years that he sought or the four to five years as it became during the course of his final contention before the...
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