Winifred Helen Ward v Secretary of State for Levelling Up, Housing and Communities

Hearing date: 7 March 2024

Approved Judgment

This judgment was handed down remotely at 10 am on 25 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Claimant applies, under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), for a statutory review of the decision, made on 30 December 2021, by an Inspector, appointed by the First Defendant, which dismissed Mr Mark Cooper's appeal against the refusal of planning permission by the Second Defendant (“the Council”) for a material change of use of land in the Green Belt for the stationing of caravans for residential occupation, on the south side of Carlton Road, Bowers Gifford, Basildon (“the Site”).

The Claimant resides at the Site with Mr Cooper and their three children in one mobile home and one touring caravan. The Claimant is an Irish Traveller and Mr Cooper is a Romani Gypsy. Mr Cooper was the applicant for planning permission and the appellant in the appeal under section 78 TCPA 1990. He has not been joined as a claimant in this application because he has not been able to obtain legal aid. The Claimant has been granted legal aid and she is a person aggrieved by the decision, within the meaning of section 288(1)(a) TCPA 1990 as she is at risk of losing her home.

The Council is the local planning authority.

Grounds of challenge

There is a dispute between the parties over the extent of the grant of permission to apply for statutory review.

The grounds of challenge as originally pleaded, when the claim was filed on 8 February 2022, were as follows:

i) Ground 1. The Inspector erred in law when she concluded in paragraph 24 of the Decision Letter (“DL/24”) that ‘substantial weight’ should be attributed to both the harm in the Green Belt by reason of inappropriateness and the harm to the openness of the Green Belt.

ii) Ground 2. The Inspector's decision not to grant a temporary planning permission which would be personal to the First Claimant and her family was disproportionate and irrational.

Permission to apply for statutory review was refused on the papers by Johnson J. on 24 June 2022. The Claimant renewed her application for permission on Ground 2 only. Ground 1 was not pursued.

The oral renewal hearing took place on 8 November 2022. HH Judge Walden-Smith, sitting as a Judge of the High Court, refused permission on all grounds. During the hearing, she allowed Counsel for the Claimant to rely upon new grounds which were only made orally and not recorded in writing, either before or immediately after the renewal hearing. They were summarised in paragraph 12 of her judgment, as follows:

“Mr Cottle significantly expanded the extent of his challenge … that ground to contend that there was a failure to apply the public sector equality duty; that there was a failure to consider an absence of policy for the provision of sites; that some of the inspector's decisions were not supported by evidence; and there was a failure to have regard to the best interests of the children.”

Upon an appeal to the Court of Appeal, Lewison LJ granted permission to apply for statutory review, on 25 January 2023, for the following reasons:

“I do not underestimate the difficult of challenging what, on its face, appears to be a carefully reasoned balance of the various factors for and against the grant of planning permission. I do, however, consider that it is at least arguable that in para [25] of the DL the inspector in making the transition from “primary consideration” to “significant weight” (as opposed to “substantial weight” used elsewhere in the DL made an error of law. There is also some force in the Appellant's contention that the inspector, in addition to balancing the various factors, ought to have given greater consideration to the question of proportionality (dealt with simply as a conclusion in one sentence of para [31] of the DL).”

Mr Garvey, Counsel for the First Defendant, contends that the grant of permission was limited to the two issues specified in the ‘Reasons’ section of Lewison LJ's order.

Mr Cottle, Counsel for the Claimant, submits that, in the Court of Appeal, permission was sought and granted on the basis of the Grounds of Appeal submitted by him, in particular:

“3. Having regard to all the circumstances (and particularly the small scale of the proposed development, the consequential degree of harm to the Green Belt and the matters which the Inspector identified should be attributed ‘significant weight’ in favour of the appeal) the Inspector's decision not to grant temporary planning permission made personal to the Claimant and her family was disproportionate and perverse.

4. Such is the combined weight of the matters relied upon in support of the appeal, such was the very limited extent of harm that the Inspector found was caused by the proposal given it is situated in a settlement, said to be a degree of harm, it was not a fair reflection of the factors to then go on to conclude that that harm was so substantial that it was not clearly outweighed. The substantial weight that must be given to protection of the green belt was so obviously outweighed it was perverse to decide otherwise and it was relevant to know what the profound health need was, that the Inspector was referring to.”

In the ‘Permission to appeal skeleton argument’, Mr Cottle stated, at paragraph 17, that there was only one ground of appeal, namely, the ground set out in paragraph 3 of the Grounds of Appeal, taken from paragraph 21 of the Statement of Facts and Ground (in its original form).

In the light of the skeleton argument and the grounds of appeal, I consider that Lewison LJ must have treated the sole ground of challenge as being the text set out in paragraph 3 of the Grounds of Appeal. He did not grant permission on some grounds and not others because there was only one ground before him. The further grounds raised orally before HH Judge Walden-Smith were not before him.

Ground 2 was widely drafted. Mr Cottle submits that Lewison LJ gave permission for Ground 2 to be pursued in its entirety. Mr Garvey submits that Lewison LJ did not accept that the entirety of Ground 2 was arguable. He found that the Inspector's decision “on its face, appears to be a carefully reasoned balance of the various factors for and against the grant of planning permission”. Lewison LJ only identified two arguable errors of law within Ground 2, which were as follows:

i) In DL/25, the Inspector in making the transition from “primary consideration” to “significant weight” (as opposed to “substantial weight” used elsewhere in the DL) made an error of law.

ii) The Inspector, in addition to balancing the various factors, ought to have given greater consideration to the question of proportionality, dealt with simply as a conclusion in one sentence of DL/31.

In my view, the decision is ambiguous and could be read either way. Therefore, I have decided to give the Claimant the benefit of the doubt and proceed on the basis that permission was granted for Ground 2 as then pleaded.

A further complication is that the parties subsequently submitted to the Court directions which they had agreed between themselves, which permitted the Claimant to file an Amended Statement of Facts and Grounds (“SFG”). An Administrative Court Office Lawyer made an order accordingly on 14 April 2023.

In the Amended SFG, Mr Cottle recast his case with a substantial amount of new text. He re-numbered the Grounds, so that what was Ground 2 has become Ground 1. The Amended Grounds may be summarised as follows:

i) Ground 1: irrationality. The Inspector's decision not to grant a temporary planning permission was disproportionate and perverse.

ii) Ground 2: children's best interests. The Inspector misdirected herself by regarding the primary consideration of achieving the outcome that was in the best interests of the children as attracting less weight than the public interest in protecting the Green Belt.

iii) Ground 3: proportionality. In carrying out the balancing exercise required by Article 8 ECHR, the Inspector failed to give sufficient consideration to the issue of proportionality. Further or alternatively, she failed to give sufficient reasons for her conclusion.

iv) Ground 4: flawed balancing exercise. The Inspector's balancing exercise was flawed because she failed to factor in the right ingredients.

Ground 4 was not pleaded in the original SFG, and so Lewison LJ did not grant permission to pursue it. However, I have considered the specific points made under Ground 4 when determining Grounds 1 and 3.

Factual background

The Site and planning policies

The Site, which is about 527 sq. ft in size, is located on the south side of Carlton Road, Bowers Gifford, Basildon within the North Benfleet former Plotlands Estate. The Site is within the Metropolitan Green Belt. 63% of the Council's District is designated Green Belt; the rest is urban development. It lies between the built up areas of Basildon and Benfleet. The area is characterised by sporadic, low density, low rise residential development, interspersed with open, undeveloped plots of land. The Claimant submitted that the proposal was essentially infill development but the Council...