South Cambridgeshire District Council v (1) Secretary of State for Communities and Local Government (2) Archie and Julie Brown
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett DBE:,Lord Justice Scott Baker,Sir Robin Auld |
| Judgment Date | 05 September 2008 |
| Neutral Citation | [2008] EWCA Civ 239,[2008] EWCA Civ 1010 |
| Docket Number | Case No: C5/2007/2282,Case No: C1/2007/2282/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 05 September 2008 |
[2008] EWCA Civ 1010
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE KEITH)
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Family Division
Lord Justice Scott Baker and
Sir Robin Auld
Case No: C1/2007/2282/QBACF
Robert McCracken Q.C and Saira Kabir Sheikh (instructed by Sharpe Pritchard) for the Appellant
James Strachan (instructed by The Treasury Solicitor) for the First Respondent
Marc Willers (instructed by Community Law Partnership) for the Second Respondent
Hearing date: 26 June 2008
This is an appeal by South Cambridgeshire District Council (“the Council”) against the decision of Keith J. on 18 September 2007 when he dismissed the Council's application under s.288 of the Town and Country Planning Act 1990 (“the 1990 Act”).
By that application the Council had sought to challenge the decision of an inspector, Lucy Drake BSc MSc MRTPI, given in a decision letter dated 12 April 2006. She had allowed an appeal under s78 of the 1990 Act by Mr and Mrs Brown, who are the second and third respondents to the present appeal. The first respondent is the Secretary of State for Communities and Local Government. The inspector granted the Browns personal permission for:
“Residential use – the siting of caravans, utility block and mobile chalet/medical unit for a disabled person.”
on land at The Arches, Schole Road, Willingham Cambridgeshire (“the appeal site”).
Background
The Browns are gypsies. They come from gypsy families in the local area to the appeal site. They previously led a travelling lifestyle but this was curtailed by the birth of their third child, a daughter, Kelly Marie at Hinchinbrook Hospital, Huntingdon in 1996.
She was born with an acute and life threatening condition. It is called microcephaly with severe global developmental delay. She was expected to live for no more than a few weeks, but she is now eleven and has managed to survive with the support of regular medical assistance and special care. This continues to be required both on an ongoing and emergency basis. She cannot walk unaided and has a wheelchair. All intimate and personal care has to be undertaken by a responsible adult.
Since her birth the Browns have sought to remain on sites in the local area to enable Kelly to obtain the ongoing medical care and attention that she needs and to attend a nearby special school.
The inspector concluded that while the development proposed was not in accordance with the Development Plan and would cause harm to the character and appearance of the local area, that harm was outweighed by other material considerations, most particularly the exceptional circumstances of the Brown family and the needs of their disabled daughter. She therefore granted conditional personal planning permission. Those conditions are important and in particular, for present purposes, conditions 1 and 2 which are:
“1. The occupation of the site hereby permitted shall be carried on only by Archie and/or Julie Brown and their resident dependants.
2. When the land ceases to be occupied by those named in condition 1 the use hereby permitted will cease and all caravans, structures, materials and equipment brought onto the land in connection with the use including the utility block hereby approved shall be removed. Within three months of that time the land shall be restored to its condition before the use commenced.”
Keith J. rejected the Council's various grounds of challenge to the validity of the inspector's decision. He subsequently refused permission to appeal to this Court and permission to appeal was again refused on paper by Pill L.J. However, at an oral hearing before Hallett L.J on 8 February 2008 she granted permission “with a very considerable degree of hesitation and on one ground only.” That ground is whether Keith J. was correct in stating, as he did in paragraph 34 of his judgment reciting paragraph 74 of the inspector's determination, that:
“In seeking to determine the availability of alternative sites for residential gypsy use, there is no requirement in planning policy or case law for an applicant to prove that no other sites are available or that particular needs could not be met from another site.”
The subject matter of this appeal is therefore a very narrow point.
Legislative background
S.57 of the 1990 Act provides the general requirement that, subject to certain exceptions, planning permission is necessary to carry out any development of land. Development means the carrying out of certain operations or the making of any material change in the use of the buildings or the land. (s.55).
A person may apply to a local planning authority for planning permission (s.62). Where such an application is made a local planning authority may grant it unconditionally or subject to such conditions as it thinks fit, or it may refuse permission (s.70(1)).
S.70(2) provides that in dealing with an application for planning permission the authority should have regard to the provisions of the Development Plan, so far as material to the application, and to any other material considerations.
S.38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) provides that:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
S.78 of the 1990 Act provides that a person may appeal to the Secretary of State against a local planning authority's failure to determine an application for planning permission within the prescribed time period.
S.79(1) provides:
“(1) On an appeal under s.78 the Secretary of State may:
(a) allow or dismiss the appeal or;
(b) reverse or vary any part of the decision of the Local Planning Authority (whether the appeal relates to that part of it or not);
(c) and may deal with the application as if it had been made to him in the first instance.”
The Development Plan in the present case comprised:
“(i) The Cambridgeshire and Peterborough Structure Plan 2003, and
(ii) The South Cambridgeshire Local Plan adopted in 2004.”
S.288 of the 1990 Act provides:
“(1) If any person –
(a) is aggrieved by an order to which this section applies and wishes to question the validity of that order, on the grounds –
(i) that the order is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that order or…..
he may make an application to the High Court under this section.”
The remainder of the section is not relevant for present purposes.
It is necessary to make the following general observations about s.288.
(i) A decision may only be challenged on ordinary administrative law grounds. Seddon Properties Ltd v Secretary of State (1978) P + CR 26.
(ii) Interpretation of policy is the matter for the decision maker. Where the interpretation is one that the policy is reasonably capable of bearing there is no basis for intervention by the court. R v Derbyshire County Council ex parte Woods [1997] JPL 958.
(iii) The weight to be attached to material considerations and matters of planning judgment are within the exclusive jurisdiction of the decision maker. Tesco Stores Ltd v Secretary of State [1995] 1WLR 759.
(iv) A decision letter must be read in good faith, and references to polices must be taken in the context of the general thrust of the reasoning. The adequacy of the reasons is to be assessed by reference to whether the decision in question leaves room for general doubt as to what the decision maker has decided and why. South Somerset District Council v Secretary of State [1993] 1PLR 80 and Clarke Homes Ltd v Secretary of State (1993) 66 P + CR 263.
(v) There is no obligation on the decision maker to refer to every material consideration, only the main issues in dispute. Bolton Metropolitan Borough Council v Secretary of State (1995) 71 P + CR 309.
(vi) Reasons can be briefly stated, the degree of particularity depending on the nature of the issues falling for decision. The reasoning must not give rise to substantial doubt as to whether there was error of law, but such an inference will not readily be drawn. South Bucks District Council v Porter (No.2) [2004] UKHL 33.
The decision letter
The inspector set out her findings and the reasons for them in a very full and careful decision letter. It is perfectly clear from that letter that the case turned on exceptional circumstances.
She began by setting out the background to the appeal, identifying the nature of the appeal site and the Brown family's occupation and circumstances. Importantly, she referred to a previous appeal decision dismissing an appeal against an enforcement notice by the Council, reciting key conclusions of the previous inspector. She acknowledged that that recent decision was an important material consideration in the appeal before her.
She then summarised the relevant planning policy before distilling what she saw as the four main issues. These were:
“(i) Whether, and the extent to which, the development complied with the criteria within Local Plan Policy HG 23.
(ii) The provision of and need for additional gypsy sites in the district.
(iii) The personal circumstances of the Brown family.
(iv) The accommodation...
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