South Buckinghamshire DC v Porter (No 1)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeJUDGE RICH
Judgment Date17 Sep 2002
Neutral Citation[2002] EWHC 2136 (Admin)
Docket NumberCO/4504/01 & CO/4527/01

[2002] EWHC 2136 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before

His Honour Judge Rich QC

CO/4504/01 & CO/4527/01

South Buckinghamshire District Council
(Claimant)
and
1 Secretary of State for Transport, Local Government and the Regions
and
2. Linda Porter
(Defendants)

MR T STRAKER QC AND MR I ALBUTT (instructed by Messrs Sharpe Pritchard, London WC1V 6HG) appeared on behalf of the CLAIMANT

MR C GEORGE QC AND MR S COTTLE (instructed by The Community Law Partnership, Birmingham) appeared on behalf of the SECOND DEFENDANT

JUDGE RICH
1

: This is an appeal under section 288 of the Town and Country Planning Act against a decision of the Secretary of State's inspector whereby he gave planning permission for the continued occupation of a mobile home within the green belt for the life of the second defendant. The appeal is of course by the local planning authority which has sought to control development on the appeal site, undertaken without planning permission, both by the present second defendant and by her husband over a number of years since about 1985. It is not to the point to trace that history which, as I am told, is ongoing in respect of developments other than in respect of this residential use of the particular mobile home, but it is, to put it no higher, very understandable why the local planning authority should be so concerned at the permitting of any inappropriate use on this green belt site and there is no dispute between the parties that the residential use of a mobile home is indeed an inappropriate use of a green belt site.

2

The Secretary of State has been prepared to concede that his inspector did fall into an error of law in his decision letter and I will deal with the particular ground which the Secretary of State felt bound to concede, although I cannot help observing that I suspect the Secretary of State may not have been entirely reluctant to make the concession which he did, having regard to the history of the site and the decision at which the inspector arrived on the merits of the appeal.

3

But this court is of course not concerned at all with merits but only with whether or not the decision of the inspector to whom the Secretary of State delegated his decision making power was within the statutory powers and followed proper procedures, including the giving of reasons, in the formulation of the decision.

4

Mr Straker has addressed the court first not upon the ground that was conceded by the Secretary of State, nor yet upon the ground which was placed first in the claim form, but upon ground 3 as advanced in the claim form, namely that the inspector failed to take into consideration that the second defendant's deliberate breach of planning control and refusal to make any application for a pitch within the claimant's district until one month before the inquiry and to make no application at all on any other site in any location should not amount to a very special circumstance. The reference to "very special circumstance" is of course a reference to the sole criterion by which, in accordance with the policies both national and local in respect of a green belt site, inappropriate development may be permitted. And it was on the basis that he determined that there were in this case very special circumstances that the inspector granted permission for the development which he had himself identified as being retrospective planning permission.

5

In so doing, of course, he immediately identified that the permission that was being sought was a permission to authorise development which had begun in breach of planning control. That was clearly identified in the decision letter, as also was the fact that the appellant had only just recently made an application for accommodation on the gypsy sites which the local authority provided within the area. That was said in terms in paragraph 9 of the decision letter. It follows that it cannot cogently be suggested that the inspector did not have in his mind these two matters which it is alleged that he failed to take into consideration.

6

But it is urged on me by Mr Straker that he had regard to the length of occupation, contrary to planning control, of the appellant without bringing into account the fact that it was indeed in breach of planning control. It is right that the first of the reasons which the inspector gave in his decision letter for his decision, the first paragraph under the head of reasons, states:

"The appellant has occupied the appeal site as a home for a considerable period of time purchasing the land in 1985."

7

I accept from Mr Straker, and indeed I do not think it would have needed the authority that he cited to me from the European Court under the head of Chapman v United Kingdom (2001) 33 EHRR 18 to persuade me that, in considering the relevance of a person's occupation of premises as their home to the question of whether they should be granted planning permission for such occupation, it must be material whether that occupation was at all times in breach of planning control—although I would remark that it must be an unusual circumstance where applications are made for retrospective planning permission and occupation has not been in breach of planning control, although, of course, there may be occasions when a planning permission is granted only for temporary occupation and the period of unlawful occupation has been limited. But of course it must reduce the weight to be attached to the reason that the appellant has occupied the appeal site as a home for a considerable period of time that such occupation is in breach of planning control. But the fact that it has been in breach of planning control clearly cannot be determinative that planning permission should be refused, nor has Mr Straker for one moment suggested that it would be. Nor does the fact of breach of planning control constitute a reason advanced by the Council why in the particular circumstances permission should be refused. Again it would be a somewhat circular proposition to say that planning permission is needed, therefore it should be refused. It is merely a consideration, in my judgment, that goes to the weight to be attached to this long period of occupation and its materiality is, I think, well indicated by the terms in which this part of the history was referred to by an inspector who determined a number of appeals in relation to enforcement notices in [1994]. He observed in his decision letter as to ground (a):

"As a preliminary aspect of the case it is relevant to bear in mind that there has been a long history of planning applications, refusals and appeals…"

8

Mr Straker suggested that that reference by a previous inspector required the inspector whose decision is now being impugned to refer to that reference by that previous inspector and explain his difference of view as to the materiality of this history. But when one goes on to read the rest of what the previous inspector said in regard to this matter, one understands, in my judgment, both why no reference was necessary and why the inspector's reasoning is not to be impugned on this particular ground. The previous inspector continued:

"In particular, most of the plots to the north beyond the access to [the relevant] farm have been confirmed for compulsory purchase by the Council following unauthorised development by gypsies. The background to all these cases has been the Council's objective for the land to be reverted to its original openness in accordance with that purpose under green belt policy."

9

In other words, the history was in the previous inspector's judgment primarily material to that motivation on the part of the Council which has led to this appeal. It is not a reason for regarding the occupation by the appellant as being some factor in deciding the appropriateness or otherwise of allowing continuation of such occupation having regard to its having been established.

10

It seems to me to follow from this that Mr Straker's reliance upon the decision of the Court of Appeal in North Wiltshire District Council v Secretary of State 65 P&CR 137 is not to the point because there is not, in this respect, a previous decision of an inspector to which it was necessary for the present inspector both to have regard and to distinguish. But if the fact that use has been in breach of planning control does not itself constitute a reason for refusal, it does not, in my judgment, vitiate a reason that is advanced for allowing the appeal and certainly it in no way impinges upon the reason which was in fact given for the particular decision, namely the existence of very special circumstances amongst which the history of unlawful occupation was not one of the reasons relied upon by the inspector.

11

I turn therefore to ground 2, which is the ground which the Secretary of State conceded as justifying the quashing of his inspector's decision.

12

Ground 2 is expressed as being:

"The third reason for the refusal of planning permission [that is to say by the claimant Council] relied on precedent. This was a main issue at the inquiry. The inspector failed to address or give any reasons to his decision letter on this issue."

13

The reason given for the refusal needs to be identified in its context. The first two grounds refer to the inappropriateness of development in the green belt and secondly to conflict with a local policy concerning the Valley Park.

14

Ground 3, or reason 3, was then expressed as:

" Notwithstanding the above reasons this proposal, if permitted, would be liable to act as a precursor of similar developments in this locality...

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