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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Clarke v Secretary Of State For Environment Transport & Regions [2001] EWHC Admin 800 (9th October, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/800.html Cite as: [2001] EWHC Admin 800 |
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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Royal Courts of Justice Strand London WC2 | ||
B e f o r e :
- - - - - - -
THOMAS GEORGE CLARKE
THE SECRETARY OF STATE FOR THE ENVIRONMENT
TRANSPORT AND THE REGIONS
and
TUNBRIDGE WELLS BOROUGH COUNCIL
- - - - - - -
(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited,
190 Fleet Street,
London EC4A 2HD
Telephone No: 020-7421 4040
Fax No: 020-7831 8838
Official Shorthand Writers to the Court)
- - - - -
MR M WILLERS (instructed by Lance Kent and Company, Chesham, Buckinghamshire HP5 1EG) appeared on behalf of the Claimant.
The First Respondent did not appear and was not represented.
MR R GROUND (MISS J BOYD for judgment only) appeared on behalf of the Second Defendant.
J U D G M E N T
(As Approved by the Court)
____________________
____________________
Crown Copyright ©
____________________
Tuesday, 9th October 2001
“ 5.'Gypsies' are defined in section 16 of the 1968 Act [that is the Caravan Sites Act 1968] As “persons of nomadic habit of life, whatever their race or origin”. References to gypsies in this Circular are references to gypsies in that sense. The term does not include members of an organised group of travelling showpeople or circus people, travelling together as such. Planning advice relating to travelling showpeople is given in DoE Circular 22/91...
6. Gypsies make up a tiny proportion of the population of England and Wales, but their land-use requirements need to be met. Many gypsies are self-employed people, sometimes occupied in scrap and scrap-metal dealing, laying tarmacadam, seasonal agricultural work, casual labouring, and other employment associated with their itinerant lifestyle. The gypsy community also includes groups of long-distance travellers who nowadays earn their living mainly from trades such as furniture dealing, carpet selling and other related occupations. Local planning authorities need to be aware of the accommodation and occupational needs of gypsies, having regard to their statutory duties, including those in respect of homelessness under Part III of the Housing Act 1985.
...
13. As a rule it will not be appropriate to make provision for gypsy sites in areas of open land where development is severely restricted, for example, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest, and other protected areas. Gypsy sites are not regarded as being among those uses of land which are normally appropriate in Green Belts. Green Belt land should therefore not be allocated for gypsy sites in developed plans.”
1. “(1) Everyone has a right to respect for his private and family life,
2. his home and his
3. correspondence
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“The enjoyment of the rights and freedoms set fourth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“18. The appellant argues that his personal circumstances are equally relevant. It is accepted that the Council has offered permanent accommodation, but Mrs Clarke, who also has close family in the area, has never lived in a conventional house and found the prospect distressing.”
“It is unfortunate, in my view, that the appellant felt unable to accept the offer of permanent housing. However, it is not unknown for gypsy families to find that such accommodation would represent an unacceptable change in their lifestyle, and I have no reason to doubt the evidence of Mrs Clarke in that respect. On the other hand, I do consider that the offer of that accommodation does detract somewhat from the appellant's contention that the only alternative to the appeal site has been an illegal roadside pitch. It is also relevant to note that, on the evidence, the offer (by the High Weald Housing Association) was for a property in Benenden which is only a short distance from Cranbrook.”
“I therefore turn to the visual impact of the use and, again, the conclusions of the previous Inspector are important because there has been no subsequent change in development plan policies. He took the view that what he described as the attractive open countryside of the locality extends to the roadside in the gap which includes the appeal site and that its undeveloped rural character is in sharp contrast to the suburban appearance of the opposite frontage. It was found that, although the hedge provides some screening, the front boundary fence and the top of the mobile home above it, were open to view and gave a clear perception that the site is in residential use, which would be emphasised by the various forms of domestic activity. Given the site's location within a SLA, my colleague concluded that the development had a markedly adverse effect on the character and appearance of its surroundings.”
“13.... given the sensitivity of the location, I do not consider that these factors [factors which he had set out previously relating to the attempts by the Appellant to endeavour to reduce the intrusiveness of his use of the land] are sufficient to overcome the harm which is being caused by a residential use, albeit for a gypsy family. In my opinion, the very presence and extent of the panels of domestic, close boarded fencing in a prominent position beside the road creates an artificial feature which is alien to its setting.
...
15. In any event, the concealment of the site from the road is partly dependent on the access gates being closed. As my predecessor commented, 'there are likely to be various forms of activity, such as the movement of cars and even simple domestic features life refuse collection arrangements' which would reinforce the impression of a residential use. In summary, therefore, I do not consider that I have adequate grounds for departing from his firm conclusion that the relevant land use policies make such a use unacceptable on this site. Furthermore, although I recognise that every application should be treated on its own merits, I would also be concerned about the precedent that could be established for other similar locations in the area.”
“As regards the submissions made under Article 8, I recognise that dismissal of the appeal would result in an interference with the appellant's home and private and family life. However, that interference must be balanced against the public interest in pursuing the legitimate aims stated in the Article, particularly the economic well-being of the country (which includes the preservation of the environment.) In my opinion, the objections of the development that has taken place on the appeal site are serious and could not be overcome by granting a temporary planning permission, or one subject to other conditions. I consider that the public interest can only be safeguarded by the refusal of permission and that, in all the circumstances, such a decision is necessary in a democratic society in furtherance of the legitimate aims stated. They do not place a disproportionate burden on the appellant and I therefore consider the dismissal of the appeal would not result in a violation of his rights under Article 8.”
“I have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review. But the same result is achieved by reliance on the European Convention. Article 8(1) gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly's exercise of his rights under article 8(1) to an extent much greater than necessity requires. In this instance, therefore, the common law and the Convention yield the same result. But this need not always be so. In Smith and Grady v United Kingdom (1999) 29 EHRR 493, the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for the breach of their rights under article 8 of the Convention because the threshold of review had been set too high. Now, following the incorporation of the Convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy.”
“And I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] I KB 223 was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the defence due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.”
“A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.”
“The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so.”
“What is required is that the Secretary of State justify a derogation from a Convention right, and that the justification be 'convincingly established'.... In asking whether the justification has been convincingly established, the domestic court (as indeed the court in Strasbourg) should consider the matter in a realistic manner, and always keep in mind that the decision-maker is entitled to a significant margin of discretion. The Secretary of State must show that he has struck a fair balance between the individual's right to respect for family life and the prevention of crime and disorder. How much weight he gives to each factor will be the subject of careful scrutiny by the court. The court will interfere with the weight accorded by the decision-maker if despite an allowance for the appropriate margin of discretion, it concludes that the weight was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review on traditional Wednesbury grounds, where the court usually refuses to examine the weight accorded by the decision-maker to the various relevant factors.”
“They identify the following factors: (a) The nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter; (b) The extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable; (c) The extent to which the court has special expertise, for example in relation to criminal matters;”
(i) whether the person and, if appropriate, his family live in a caravan which, for definition purposes, can include a mobile home;
(ii) whether such person is Romany and/or subscribes to the Gypsy culture. In paragraph 73 of the judgment of the European Court of Human Rights in Chapman the majority judgment of the court reads as follows:
“The court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a gipsy, reflecting the long tradition of that minority of following a travelling lifestyle... Measures which affect the applicant's stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition.”
With respect, I would suggest that the definition of the identity as an ethnic identity in that judgment overlooks what I have already indicated, namely the fact that in order to qualify as a Gypsy, as I understand it, it would not be necessary for such a person to be Romany. Of course it is possible for there to be, and is, intermarriage between Romanies and non-Romanies but, in any event, there will be, and are, many Gypsies who are not part of the strict, as it used to be, tribe of Romanies with what I understand, and Lord Diplock understood, to be said to be an ancestry in India. In those circumstances I would prefer to have considered that what the European Court of Human Rights is there referring to is not an ethnic identity but a cultural identity.
(iii) whether the person is itinerant or nomadic for a substantial proportion of the year.
(iv) whether such itinerance is linked to the person's livelihood. Here I refer to the words of Leggatt LJ in R v South Hams District Council and another, ex parte Gibb at 1024C. He said:
“... I have come to the conclusion that Parliament must have recognised and assumed the characteristic of nomads and also of gipsies that it is in order to make or seek a living that they move from place to place. It is because they have no fixed abode and no fixed employment that gipsies live in caravans, so that they can both have a home and go where work is. It may be seasonal or sporadic, regular or occasional; to reach it they must use the caravans in which they live...”
“... my predecessor accepted in 1998 that the appellant was a gypsy and it was said for the Council that it had no evidence of any change. It seems that the appellant's normal practice is to travel to fruit farms in Surrey and East Anglia for two or three periods of six weeks between May and October. During the winter, he seeks work on local farms and carries on general dealing. In my opinion, that is sufficient, because it was held in Greenwich LBC v Powell (1989) 1 All ER 65 that a person may be a gypsy even though he leads a nomadic life only seasonally and regularly returns for part of the year to the same place where he has a fixed abode.”
“The Council's Housing Department did receive on 29 October 1998 an application for rehousing and they were offered temporary accommodation. This was turned down stating they would rather wait for an offer of permanent accommodation. In about May 1999, an offer of permanent accommodation was made for the property at 11 Leybourne Dell, Benenden. The offer was made by the High Weald Housing Association. The appellants failed to respond to this offer and because of this, the Council has now discharged any duty to them under the Housing Acts.”
“It is unreasonable to expect the appellant to live in a house, just as it would be unreasonable to expect people who have lived in a house all or most of their lives to spend the whole year in a caravan.”
“It is accepted that the Council has offered permanent accommodation, but Mrs Clarke, who also has close family in the area, has never lived in a conventional house and found the prospect distressing.”
“It is unfortunate, in my view, that the appellant felt unable to accept the offer of permanent housing. However, it is not unknown for gypsy families to find that such accommodation would represent an unacceptable change in their lifestyle, and I have no reason to doubt the evidence of Mrs Clarke in that respect.”
(1) It is not clear what the Inspector's conclusion was in relation to the issue of conventional housing. Did the Inspector conclude that the Clarkes or, at any rate, Mrs Clarke, had a settled and immutable antipathy to conventional housing rooted in their gypsy culture? The Appellant and his family had, it seems, from Mr Bringlow's evidence, made an application for housing at one stage, but then not taken up the offer. Mr Ground invites me to say that the Inspector was consequently sceptical of the genuineness of Mrs Clarke's position, and that that is why he took her refusal into account; but he does not say so. Indeed he says, turning around the words that he has used into one sentence: “I have no reason to doubt the evidence of Mrs Clarke that such accommodation [that is conventional housing] would represent an unacceptable change in their lifestyle.”
(2) It is also not clear what the Inspector was taking into account. Was it that the Appellant and his family had refused such accommodation in the past; or was it that there was, or could be, such accommodation available if push came to shove? If the former, then such a conclusion would be close to the concept of intentional homelessness found to be compatible with the Human Rights Act in Poplar Housing and Regeneration Community Association Limited v Donoghue [2001] 3 WLR 183, CA, but would render it the more important to be entirely clear and fair about such a decision, and whether such a refusal was, or was not, a reasonable course by a person refusing the offer. If the latter, then that could be evidence of the scepticism of the Inspector, or it could be the Inspector's conclusion that the conventional accommodation could, or should, be taken up, notwithstanding its unsuitability.
(3) It is also not entirely clear how the Inspector would have decided if he did not take into account the availability of, or the refusal of, the offer of conventional housing. Thus, for example, it was part of
(1) there must be a role for the Administrative Court in checking whether there has been a manifest breach of the Convention, even if the approach of the authority or tribunal, sought to be reviewed, does not offend against a common-law or statutory regime. Thus in Daly if their Lordships had been persuaded to say that the decision under the prison regulations or rules justified the interference with the privileged correspondence at common-law (although, in the event, they decided it did not) they could still have concluded that they could not justify such an interference under the Convention. So too in the recent decision of Hatton and Others v United Kingdom in the European Court of Human Rights number 36022/97 relating to flights at night at Heathrow Airport. The conclusion of the European Court at paragraph 114 and 115 provides that the court concluded that:
“judicial review was not an effective remedy on the grounds that the domestic courts defined policy issues so broadly that it was not possible for the applicants to make their Convention points regarding their rights under Article 8 of the Convention in the domestic courts.”
But it appears to me that for that to work there must be what I have indicated to be a manifest breach of an Article. An invasion of the privilege of a prisoner in relation to interference with his correspondence would appear to be a potential area in which the court would say that, whatever the proper procedures which have been carried out by the prison authorities, they themselves could not be justified under the Convention.
(2) However, judicial review and the procedures of the Administrative Court are not apt for a rehearing of the evidence. There is very rarely any role for, or indeed need or facilities for, oral evidence or cross-examination in the Administrative Court, nor will there be available on the Bench the same expertise as there is in the specialist first instance decision-maker.
(3) It is, in my judgment, neither desirable nor appropriate for the Administrative Court to set itself up to second guess planning decisions, and there is every support in the authorities, to which I have been referred, for that proposition. I refer first to the very words of the European Court of Human Rights in Chapman at paragraph 92:
“The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the court is not well equipped to challenge. It cannot visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so. Because planning inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the court to weigh the arguments. Hence, as the court observed in Buckley v UK [1996] ECHR 20348/92 at para 75, 'in so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation', although it remains open to the court to conclude that there has been a manifest error of appreciation by the national authorities.”
“ 123.The government, agreeing with the majority of the Commission, considered that in light of Bryan v UK [1995] ECHR 19178/91 the scope of review provided by the High Court concerning planning decisions satisfied the requirements of Art 6, notwithstanding that the court would not revisit the facts of the case.
124. The court recalls that in the case of Bryan v UK [1995] ECHR 19178/91 at paras 34-47 it held that in the specialised area of town planning law full review of the facts may not be required by Art 6 of the Convention. It finds in this case that the scope of review of the High Court, which was available to the applicant after a public procedure before an inspector, was sufficient in this case to comply with Art 6(1). It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as affording adequate judicial control of the administrative decisions in issue.”
“The decisions were reached by those authorities after weighing in the balance the various competing interests. It is not for this Court to sit in appeal on the merits of those decisions, which were based on reasons which were relevant and sufficient, for the purposes of Article 8, to justify the interferences with the exercise of the applicant's rights.”
“It was said that the inspector misdirected himself as to the issue of proportionality. In an Article 8 case the inspector had to consider whether the interference with the claimant's Article 8(1) rights was proportionate. It was for the local planning authority to justify the interference with the claimant's rights. The inspector had to evaluate 'the nature and extent of the detriment to this particular site... the scale and extent of the threat to road safety and whether conditions might reduce the threat balanced against the scale and nature of interference found under the first limb [of Article 8(1)].”
“Although the court [the European Court in Chapman] was there concerned with its own power to review decisions in the planning field made by national authorities, much the same arguments apply to the High Court's ability to review inspector's decisions. The court does not visit the site; it is not familiar with many of the policy considerations that will be relevant; it does not hear evidence. There may be greater scope for 'a proportionality approach' in other contexts, such as prisoners' rights.”
“For the purposes of the present appeal, it is unnecessary to decide whether, and if so to what extent, proportionality may be a ground of review in the Town and Country Planning context. It is sufficient to say that in the light of paragraph 124 of the European Court of Human Rights judgment in Chapman, recently endorsed by the House of Lords in Alconbury, there is no possible basis for the submission that this court should satisfy itself that the inspector struck the right balance between green belt and special landscape area policy, and the claimants' Article 8 rights. Striking that balance was a matter for the inspector, using his own planning expertise in the light of all the evidence, including, most importantly in so many planning cases, the site visit.”