R Smith v Secretary of State for Communites and Local Government
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 29 January 2015 |
| Neutral Citation | [2015] EWHC 784 (Admin) |
| Docket Number | CO/3941/2014 |
| Date | 29 January 2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 784 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
John Howell QC
(Sitting as a Deputy High Court Judge)
CO/3941/2014
Mr Marc Willers QC (instructed by Lester Morrill Solicitors) appeared on behalf of the Claimant
Mr Stephen Whale (instructed by Treasury Solicitor) appeared on behalf of the Defendant
(Appoved)
THE DEPUTY JUDGE:
The Appellants, Mr Bill Smith and Mrs Cassandra Smith, are the occupiers of land at Plot 2, The Paddocks, New Years Green Lane, Harefield in the London Borough of Hillingdon. This is their application for permission to appeal, under section 289 of the Town and Country Planning Act 1990, against a decision of the Secretary of State for Communities and Local Government, dismissing an appeal against an enforcement notice that had been issued by the Council of that Borough in respect of that land which lies within the Green Belt. The breach of planning control alleged in that notice was the unauthorised use of the land for the stationing of a mobile home and touring caravan for residential purposes without the benefit of planning permission. The notice required the cessation of that use and the removal of the mobile home and caravan together with other items within the period of 6 months.
The appeal against the enforcement notice was brought by the landowners, Mr and Mrs Webb. The Appellants, however, were the main protagonists at the appeal hearing. They had brought the mobile home onto the site in 2010 and since then they have lived there with their three children. The Appellants are both members of the gypsy and travelling community.
The enforcement notice was issued by the Council on December 12th 2012. The appeal against that notice was brought under section 174 of the 1990 Act only on ground (a), that planning permission should be granted for the development (which it was accepted was unlawful). With limited exceptions, appeals against enforcement notices served under section 174 of the 1990 Act are prescribed for determination by a person appointed by the Secretary of State instead of by him: see regulations 3(1)(b) and 4 of the Town and Country Planning (Determination of Appeals by Appointed Persons)(Prescribed Classes) Regulations 1997. The appeal in this case did not fall within one of these exceptions. Accordingly the Secretary of State appointed an Inspector, Mr Simon Hand MA, to determine the appeal. He held a hearing into it on October 22nd 2013.
On December 13th 2013, before the Inspector had reached any decision, however, the Secretary of State directed, under paragraph 3 of Schedule 6 to the 1990 Act, that the appeal should instead be determined by the Secretary of State "because it involves a proposal for a gypsy and traveller site in the Green Belt."
This meant that, rather than issuing a decision letter, the Inspector had to submit a report to the Secretary of State. The Inspector's report is dated February 7th 2014. In it he recommended that permanent permission should not be granted for the unauthorised development which was the subject of the enforcement notice but that a conditional planning permission for a limited period of 3 years should be granted for it.
In his Decision Letter the Secretary of State agreed with the Inspector that a permanent permission should be refused but disagreed with his recommendation that a permission for a limited period should be granted. Unlike the Inspector, the Secretary of State considered that there were not very special circumstances justifying the grant of such a permission for inappropriate development such as this in the Green Belt.
The Appellants' application for permission to appeal to this court was lodged on August 21st 2014. It sought permission to appeal on five grounds. Because the first proposed ground raised an issue that the Court of Appeal was to address shortly thereafter, Blake J adjourned the hearing of this application by consent on October 2nd 2014. Judgment in Secretary of State for Communities and Local Government & Ors v Redhill Aerodrome Ltd [2014] EWCA Civ 1386, [2015] 1 P&CR 3, was handed down by the Court of Appeal on October 24th 2014. It effectively determined the first proposed ground on which the Appellants had sought to rely against them. Mr Willers QC, who appears for the Appellants, accordingly does not pursue permission to appeal on that ground.
More recently, however, on January 21st 2015, Gilbart J gave judgment in R (Moore and Coates) v Secretary of State Communities and Local Government [2015] EWHC 44 (Admin). In it he found that, from September 2013, the Secretary of State had been applying an undisclosed practice of recovering all appeals that related to the provision of pitches for use by travellers within the Green Belt. After September 2014 his practice had been to call in 75% of all such appeals. The apparent motive for these practices was a concern that Inspectors may have been misinterpreting his policy for such a development. Gilbart J found that these practices had involved unlawful, indirect discrimination against the ethnic group towards whom they were directed and that they had been unlawfully adopted without first discharging the public sector equality duty to be found in section 149 of the Equality Act 2010. In addition, he found that the practices were also unlawful in the period until January 17th 2014, in that they were undisclosed practices that were inconsistent with the Secretary of State's own published policies. Gilbart J quashed the directions in the two cases that were the subject of the claims for judicial review before him. He also found that, as a result of the practices that he had found to be unlawful, the appeals in those cases (which remained outstanding) had not been determined within a reasonable period incompatibly with Article 6 of the European Convention on Human Rights.
The direction in this case appears to have been one granted in accordance with a practice which Gilbart J found to have been unlawful. In the light of that judgment, therefore, Mr Willers has applied on behalf of the Appellants for permission to amend the grounds on which they seek to appeal in effect to impugn the direction by which the Secretary of State recovered jurisdiction to determine the appeal in this case. He seeks permission to rely on following ground, namely that:
"The first respondent unlawfully used his powers to recover the appellant's enforcement notice appeal for his own determination in breach of sections 19 and 149 of the Equality Act 2010 and Article 6 of the European Convention on Human Rights."
On behalf of the Secretary of State, Mr Whale has reserved his position as to whether or not this court has jurisdiction to consider such a ground on an appeal under section 289 of the 1990 Act. Given that this raises a question going to the jurisdiction of this court, I have at least to be satisfied that it is arguable that this ground gives rises to an point of law on which an aunder section 289.
Section 289 of the 1990 Act provides that:
"(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court…
(7) In this section 'decision' includes a direction or order, and references to the giving of a decision shall be construed accordingly."
An appeal on the point of law provides an opportunity to raise any ground on which a decision may be impugned on a claim for judicial review — see for example Begum (FC) v London Borough of Tower Hamlets [2003] UKHL 5, [2003] 2 AC 430, per Lord Bingham at [7] and Lord Hoffmann at [17] (with both of whom Lord Hope agreed at [73]) and Lord Walker agreed with Lord Hoffmann at [108]. Accordingly the grounds on which Gilbart J found the directions were unlawful in Moore and Coates are ones that could be advanced as points of law under section 289.
Given that a "decision" in this section includes a "direction" of a description mentioned in subsection (7), the question whether a court can entertain a challenge under these provisions to the legality of a direction by the Secretary of State that any appeal against the enforcement notice should be determined by him rather an appointed person as such depends on whether it is "a direction in proceedings on" such an appeal and, if it is, whether the challenge to it is on a point of law. As I have indicated, the challenge is one that raises a point of law. In my judgment, it is at least arguable that any direction given by the Secretary of State to reclaim jurisdiction to determine an appeal is "a direction in proceedings" on such an appeal, since it governs who is to determine the appeal and it is given in the course of proceedings on it. The view that such a direction could be directly impugned before any decision was taken by the Secretary of State in an appeal under section 289 of the 1990 Act was also the view of Lewis J in Connors & Ors v Secretary of State for Communities and Local Government [2014] EWHC 2358, at [138].
Whether or not a direction as such may be the subject of an appeal under section 289...
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