Secretary of State for Communities and Local Government v South Gloucestershire Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice David Richards |
| Judgment Date | 05 February 2016 |
| Neutral Citation | [2016] EWCA Civ 74 |
| Docket Number | Case No: C1/2014/4049 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2016 |
[2016] EWCA Civ 74
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE SINGH
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
and
Lord Justice David Richards
Case No: C1/2014/4049
Mr Stephen Whale (instructed by the Government Legal Department) for the Appellant
Hearing date: 21 January 2016
Introduction
The only issue in this appeal is whether this court should set aside the exercise of discretion by the judge in the court below in favour of granting relief by way of a quashing order in a challenge to an inspector's decision to grant planning permission in an appeal under section 78 of the Town and Country Planning Act 1990. As is acknowledged on behalf of the appellant, the Secretary of State for Communities and Local Government, this court will rarely do that. We must consider whether, exceptionally, we should do so in the particular circumstances of this case.
The appeal is against the order of Singh J., dated 25 November 2014, granting the application of the first respondent, South Gloucestershire Council, under section 288 of the 1990 Act, for an order to quash the decision of the Secretary of State's inspector, Mr Clive Hughes, allowing the appeal of the second respondent, AZ, upon the failure of the council to determine AZ's application for planning permission for the use of land at Sloes Well Paddock, Westerleigh Road, Pucklechurch for the stationing of a mobile home for residential purposes, the formation of hardstanding and the construction of a utility building ancillary to that proposed use. The appeal is brought with the permission of Sales L.J..
The council opposed the appeal in submissions made on its behalf in a skeleton argument, dated 26 May 2015, prepared by Ms Suzanne Ornsby Q.C.. However, on 8 December 2015, the Secretary of State and the council produced a statement describing their "agreed position". In that statement, in paragraph 3, it is explained that the council challenged the inspector's decision because the question of whether it has a five-year supply of housing land, and in particular whether any accrued shortfall in supply "should be front loaded or annualised" is an issue with "significant implications for its development control decisions relating to residential development across its administrative area". In paragraph 5 the parties acknowledge that the Secretary of State is not seeking to dispute the "serious errors of law" discerned by Singh J. in the inspector's decision and, in paragraph 6, they state that the only live issue before this court is whether "even if the serious errors of law had not occurred", the inspector's "decision to grant planning permission would necessarily have been the same". Paragraph 7a of the "agreed position" statement explains that as the Secretary of State is not seeking to revisit the errors of law identified by Singh J., and merely seeks to challenge his exercise of discretion, the council "agrees to take a neutral position on discretion and will not be represented or appear at the hearing of the appeal". Ms Ornsby therefore did not attend the hearing, but, as I shall explain, she did make short written submissions after the hearing on the court's jurisdiction under section 288.
In these and previous proceedings AZ has been granted anonymity by order of the court. We extend the anonymity order for the purposes of this appeal, since the reasons for its being made, namely AZ's serious and continuing mental illness and the need to protect the interests of his son, who is aged under 18, remain valid. Neither of the two parties active in the appeal, the Secretary of State and the council, has sought to persuade us otherwise. AZ himself has taken no part in the proceedings.
Facts
The full facts are set out in Singh J.'s judgment, in paragraphs 2 to 17 and 20 to 32. A brief summary will suffice here. The land in question, about a tenth of a hectare in area is in the Bristol/Bath Green Belt, in a swathe of countryside between Pucklechurch and the M4 motorway, surrounded on all sides by agricultural land. It is part of a larger landholding of about one hectare. It has a long planning and enforcement history. The development with which these proceedings are concerned would involve the removal of unauthorized development. The proposed mobile home would be occupied by AZ, his wife and son. AZ has been living in a mobile home on the site since 2005 or 2006. The application for planning permission was made in October 2009. An appeal for non-determination failed in November 2010, but that decision was quashed by H.H.J. Thornton Q.C. in December 2012. The appeal therefore came back before the Secretary of State for redetermination by a different inspector. The inquiry into the remitted appeal was opened by the inspector on 17 September 2013, sat for three days (17 and 18 September and 16 October 2013), but was re-opened on 1 April 2014 after the adoption by the council of its core strategy on 11 December 2013 and the publication by the Government of its Planning Practice Guidance on 6 March 2014.
During the first three days of the inquiry in September and October 2013 evidence was given on behalf of AZ to the effect that there was not a five-year supply of land for housing in the council's area, as is required by national planning policy in the National Planning Policy Framework ("the NPPF") issued by the Government in March 2012 (see in particular paragraphs 47 and 49 of the NPPF). Evidence was given on behalf of the council that there was a five-year supply of housing land.
The inspector's decision letter
In his decision letter, dated 1 July 2014, the inspector explained in paragraph 7 why he had re-opened the inquiry:
"On 6 March 2014 the Government published the on-line Planning Practice Guidance (PPG). Of particular relevance to this appeal is the Housing and economic land availability assessment chapter. Both the adoption of the CS and the PPG are highly relevant to the determination of this appeal and so the inquiry was re-opened for a single day on 1 April 2014."
At the re-opened inquiry the inspector heard further evidence on housing land supply as well as other matters.
In paragraph 8 of his letter the inspector identified the main issues in the appeal as being, first, "the effect of the development on the Green Belt with particular regard to the effect on openness and the purposes of including land within it", secondly, the "effect of the development on the character and the appearance of the area", and thirdly, "whether the harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development".
On the first issue the inspector concluded, in paragraph 18 of his decision letter, that the development "would constitute inappropriate development; would encroach into the countryside in conflict with one of the purposes of including land within the Green Belt; and would result in a loss of openness". This, he said, "constitutes a significant amount of harm that, in accordance with advice in the Framework, carries substantial weight against the development", and "would also be contrary to Policy CS5(6) of the CS which refers back to the Green Belt provisions of the Framework".
On the second issue, the inspector concluded, in paragraph 24, that, "[overall], and provided all the existing unauthorised development is removed, there would be only very limited harm to the appearance of the area", and, in paragraph 25, "[this] identified harm needs to be balanced with the other material considerations advanced in support of the proposals".
The inspector turned then to "Other material considerations" in paragraph 26 of his letter. He identified four: first, "the personal circumstances of the appellant and his family"; second, "the lack of suitable alternative sites"; third, "the five-year housing land supply"; and fourth, "human rights issues".
His conclusions under the heading "Personal circumstances" included these: that the "personal circumstances of AZ are of great weight in the determination of this appeal", and that the evidence of Dr Reeves, a consultant psychiatrist, on AZ's serious personality disorder was not challenged (paragraph 27), one of Dr Reeves' conclusions being that "if AZ loses his home there is a probability that he will take his own life" (paragraph 28); that the council's statement that it would not immediately act to make AZ comply with the four extant enforcement notices relating to the site if the appeal failed "would not be a satisfactory situation and could lead to some deterioration in his mental health" (paragraph 30); that AZ's son, who was attending a local school, "suffers nightmares arising from the thought of having to leave the site, his school and his friends", and was "also fearful about the potential harmful effect on the health of his father" (paragraph 31); that the personal circumstances of AZ and his family carried "very significant weight" in his favour (paragraph 32).
In his discussion of "Alternative sites" in paragraph 33 of his letter the inspector observed that "[the] needs of AZ and his family are specific and out of the ordinary" and concluded that if the appeal should fail and if the council then made AZ comply with...
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