South Buckinghamshire District Council v Porter (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Mance,Lord Justice Longmore |
| Judgment Date | 19 May 2003 |
| Neutral Citation | [2003] EWCA Civ 687 |
| Docket Number | Case No: C1/2002/2018 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 2003 |
[2003] EWCA Civ 687
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE RICH QC)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Pill
Lord Justice Mance and
Lord Justice Longmore
Case No: C1/2002/2018
Mr T Straker QC and Mr I Albutt (instructed by Sharpe Pritchard, London) for the Appellant
Mr C George QC and Mr S Cottle (instructed by The Community Law Partnership, Birmingham) for the 2 nd Respondent
This is an appeal against the judgment of His Honour Judge Rich QC given on 17 September 2002 by which he dismissed an application by South Bucks District Council ("the Council") under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") seeking to quash a decision of the Secretary of State given by letter dated 19 February 2002. By a duly appointed Inspector, the Secretary of State had allowed an appeal against a decision of the Council on 5 September 2000 to refuse planning permission for the retention of a residential mobile home at Willow Tree Farm, Love Lane, Iver, Bucks, for the lifetime of the applicant Mrs Linda Porter. The permission was granted subject to conditions including a condition that the permission was personal to Mrs Porter.
The Secretary of State had agreed to submit to a judgment quashing his planning decision, on the ground that by his Inspector he had failed to deal with a principal issue raised, namely the precedent effect of the planning decision but the Inspector's decision to grant planning permission was successfully upheld by Mrs Porter before the judge.
The Inspector's decision
In his decision letter the Inspector described the appeal site and surroundings:
"The development the subject of this appeal consists of a mobile home providing a kitchen, living room, bedroom and bathroom. It has the appearance of a permanent dwelling with a pitched roof and chimney. It forms part of a cluster of buildings made up of stables, tack room and a barn: there is a yard area with some touring caravans on it and, to the west, is a field also owned by [Mrs Porter] and her husband. The appeal site is situated in the green belt [GB], very close to its eastern boundary with the village of Iver and within the Colne Valley Park."
The Inspector summarised the provisions of the statutory development plan. It consisted of the County Structure Plan and the Council's Local Plan adopted in March 1999. There is a general presumption against allowing inappropriate development in the green belt, reiterating national guidance in PPG 2. There is a specific policy which seeks to protect Colne Valley Park in terms of maintaining and enhancing its landscape, nature conservation and amenity value. A policy (H 14) in the local plan provides that proposals to establish or extend gypsy caravan sites will be permitted, subject to a number of criteria. These include that the site is located within the development areas excluded from the green belt.
The Inspector identified the main issue in the case:
"For [Mrs Porter] it was accepted that the appeal development constituted inappropriate development in green belt terms. The main issue is this case, therefore, is whether there are any very special circumstances why the appeal development should be permitted despite this."
At the local inquiry conducted by the Inspector, the Council did not dispute the gypsy status of Mrs Porter or her family "either in the ethnic or statutory sense". She has occupied the appeal site as a home for a considerable time, having purchased the land in 1985. The occupation has been unlawful in that it has been in breach of planning control.
The Inspector found that the Council had made "reasonable provision in the District for gypsy sites". Mrs Porter had only recently made an application for a pitch on such a site. The Inspector found that there were no vacancies at present and waiting lists were long. He concluded that "there is no alternative location available to Mrs Porter at present and there is unlikely to be one for a considerable time".
The Inspector found that Mrs Porter suffered from serious ill-health, chronic asthma, severe generalised arthritis and chronic urinary tract infection: She also has diabetes and high blood pressure. He accepted that displacing her and her husband from her home would make it difficult for her to continue with her medical treatment and the stress involved would probably make her condition worse.
Two previous appeal decisions concerning the site were mentioned by the Inspector as relevant. Enforcement notices relating to residential use of part of the site were upheld in 1994 and in 1998 an appeal against refusal of planning permission for retention of the mobile home and associated out-buildings on the site was dismissed.
The Inspector's conclusions were stated in these terms:
"12. I have considered whether there has been any material change in circumstances since these decisions, particularly that in 1998, that would lead me to a contrary view and I have concluded that there has been in two major respects. First, on the basis of the evidence before me, no alternative Council based sites are available at present whereas, at the time of the 1998 case there was some, albeit limited, spare capacity. Second, the evidence suggests that the Appellant's state of ill health has worsened considerably since the last appeal.
13. These changes in the situation since 1998 are sufficient for me to take a contrary view to that of the previous inspector. The status of [Mrs Porter] as a Gypsy, the lack of an alternative site for her to go to in the area and her chronic ill health constitute very special circumstances which are, in this case, sufficient to override national and statutory development GB policies"
The Inspector then added that he did not accept the view expressed on behalf of Mrs Porter "that the potency and cogency of policies in the local plan [H 14] … are an any way reduced by lack of local authority gypsy sites in South Buckinghamshire or by the difficulties presented by a preponderance of green belt land in the District to those seeking a site. The Local Plan is an up to date plan and, as such, is an interest of acknowledged importance where section 54A should normally apply."
The Inspector went on to hold that a personal condition would be justified in this case "because of the very special circumstances which centre to some extent on [Mrs Porter] herself." He also imposed a landscaping condition.
The Statute and planning policies
The relevant provisions of the development plan have been set out, by reference to the Inspector's findings, in paragraph 4 of this judgment. Section 54A of the 1990 Act provides:
"Where, in making any determination under the planning Acts, regard is to be had to the Development Plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
Considering the effect of that provision (in Scotland section 18A of the Town and Country Planning (Scotland) Act 1972), Lord Hope stated, in City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447, at p 1450:
"It is not in doubt that the purpose of the amendment introduced by section 18A was to enhance the status, in this exercise of judgment, of the Development Plan.
It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision taker. The development plan does not, even with the benefit of section 18A, have absolute authority. The planning authority is not obliged, to adopt Lord Guest's words in Simpson v Edinburgh Corporation, 1960 S.C. 313, 318 'slavishly to adhere to' it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up to date guidance as to the tests which must be satisfied, will continue, as before, to be a matter for the planning authority.
The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision taker. The function of the court is, as before, a limited one. All the court can do is review the decision, as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was...
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