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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 2357 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| FELIX CASH
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) WOKINGHAM BOROUGH COUNCIL
Stephen Whale (instructed by Government Legal Department) for the First Defendant
No appearance or representation for the Second Defendant
Hearing date: 28 July 2015
Crown Copyright ©
Mrs Justice Patterson:
i) Inordinate and unexplained delay; and
ii) Lack of merit.
Grounds of Challenge
i) That the first defendant has made a fundamental and irretrievable error in the structure of decision making in that he (through his inspector) has failed to accord the impact of a negative decision on the lives of the children resident on the land in the planning balance required by law;
ii) The decision letter is Wednesbury unreasonable;
iii) The decision on proportionality is wrong and wrongly taken;
iv) The inspector has misunderstood or erred in law in making her decision on proportionality by misunderstanding the effect of the authorities relied upon by the claimant.
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2)  1 WLR 1953, at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment  1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for  EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council  PTSR 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government  EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government  1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment  65 P. & C.R. 137, at p.145)."
"(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent."
"In considering how the principle is to be applied, it is necessary to bear in mind the statutory framework for planning decisions of this kind. Section 70(2) of the Town and Country Planning Act 1990 provides that in dealing with an application for planning permission a local planning authority 'shall have regard to (a) the provisions of the development plan, so far as material to the application, (b) any local finance considerations, so far as material to the application, and (c) any other material considerations'. The Secretary of State is subject to the same obligation in relation to an application recovered for determination by him. Section 38(6) of the Planning and Compulsory Purchase Act 2004 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'. The development plan therefore has a special status within the decision-making process but may be outweighed by other material considerations. It is well established that relevant rights to family or private life under article 8 fall to be taken into account as other material considerations and can be properly accommodated in that way within the decision-making process. Where the article 8 rights of a child are engaged, the best interests of the child can and should be taken into consideration in the article 8 analysis in the manner explained in ZH (Tanzania) and H(H). The decision-maker may be subject to other duties relating to the welfare of children (I refer below to section 11 of the Children Act 2004), but they are unlikely to add anything of substance in relation to best interests where article 8 is engaged."
"i) Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account.
ii) Where the article 8 rights are those of children, they must be seen in the context of article 3 of the UNCRC, which requires a child's best interests to be a primary consideration.
iii) This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with those of his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and properly represent and evidence the potential adverse impact of any decision upon that child's best interests.
iv) Once identified, although a primary consideration, the best interests of the child are not determinative of the planning issue. Nor does respect for the best interests of a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests of the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.
v) However, no other consideration must be regarded as more important or given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case. Further, the best interests of any child must be kept at the forefront of the decision-maker's mind as he examines all material considerations and performs the exercise of planning judgment on the basis of them; and, when considering any decision he might make (and, of course, the eventual decision he does make), he needs to assess whether the adverse impact of such a decision on the interests of the child is proportionate.
vi) Whether the decision-maker has properly performed this exercise is a question of substance, not form. However, if an inspector on an appeal sets out his reasoning with regard to any child's interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision-maker reached the decision that the adverse impact to the interests of the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact of the decision he has reached on the best interests of the child, and has concluded that that impact is in all the circumstances proportionate. I deal with this further in considering article 8 in the context of court challenges to planning decisions, below."
The Decision Letter
"In my assessments and decision making I must have due regard to the public sector equality duty (PSED) contained in the Equality Act 2010. In summary, the three aims of the equality duty are to eliminate discrimination, advance equality of opportunity and foster good relations. The evidence indicates that most attention will need to be given to the protected characteristics of age and disability. Even though occupiers' individual circumstances and needs are explicitly addressed towards the end of my decision, I have had in mind the vulnerability and potential disadvantages of residents throughout my assessments, both in relation to the PSED and human rights. It is very relevant that the emphasis in the appellant's case was on the function of the site in providing for those in housing need and the very positive effects for family life and the best interests of children."
"The existing model of accommodation provision operated by the appellant does not lend itself easily to planning controls, a matter which has particular relevance where an exception to policy has to be justified. It is the proposal and how the site would be controlled in the future that is the critical consideration in the overall assessment. Importantly, the planning obligation would not secure all the existing benefits for the lifetime of the development. There is no significant support from Policy CP2. Accordingly I attach some weight to the proposed housing model and its contribution to meeting housing need in the Borough."
"97. The landscape scheme would not be adequate mitigation for the harm to the landscape character area and visual amenity. The location and siting of the development conflicts with Policy CP3 criteria (c) and (f), and Policies CC03 and TB21. With reference to Policies CP1 and CP11 the development would not maintain the quality of the local environment."
"155. The policies in the development plan applicable to the development at Pineridge have a high degree of consistency with the Framework and the policies for the supply of housing are up-to-date. The policies have full weight. The aim of the development plan and national planning policy is to secure sustainable development.
156. A five year supply of deliverable housing sites has been demonstrated. The appeal site does not contribute to the identified supply. The site is in a countryside location outside a town or village settlement, where housing development is discouraged and there are deficiencies in accessibility. The site has not been identified or allocated as being suitable for development by the Core Strategy or MDD and it is not included in the identified five year supply. The change of use has resulted in very significant environmental harm primarily through the loss of woodland protected for its amenity value, the erosion of landscape character and ecological damage. Some harm has occurred to the appearance of the locality. The proposed landscape scheme would not provide adequate mitigation for the harm to landscape character and visual amenity or the necessary compensation to conserve biodiversity. There would be no unacceptable pressure placed on local infrastructure and I regard flood risk as a neutral factor in the circumstances. The economic benefits identified lend a small degree of weight in favour of the scheme. Overall the development fails to contribute in a positive way to the economic and environmental dimensions of sustainable development.
157. The low cost accommodation caters for a range of housing needs and has provided homes for those who have been unable to secure accommodation through social housing providers. A sense of community is present at Pineridge. The availability of the mobile home site safeguards the well-being of a number of children both living there and staying with family. No significant impact on community facilities would result, taking into account the planning obligations offered. However, the development does not provide affordable housing, a priority in the Borough. Residents of the site have wide ranging and changing circumstances, rather than being an identifiable group with protected characteristics. The common factor is a general one of housing need. The full benefits of the low cost housing model operated to date would not be secure in the longer term. The social dimension of sustainable development lends support to the development but not without some serious reservations.
158. The contribution the development would make to meeting housing needs is not of sufficient weight to overcome the objections – the failure to deliver a good quality standard of development in an appropriate location. My conclusion, subject to human rights considerations, is that the mobile home site is not a sustainable form of development and is contrary to the development plan and the Framework. This conclusion takes account of the Options identified by the appellant."
"…identify all relevant considerations relating to the individual household's exercise of their rights of enjoyment of a family life and a home; identify the best interests of any children; identify the particular public interests that have to be balanced against the individual or family's interest; carry out a structured weighing up and balancing of all of these interests."
"In this case there are a number of factors likely to affect an individual's or a family's interest and in turn the seriousness of the interference: the effect on children, the availability of alternative accommodation, the vulnerability of the family or individual, the importance of on-site support, community spirit and friendships, safety and security. In addition, the terms of the tenancy agreement and knowledge of the enforcement action and compliance period are relevant. The weight to be attached to each factor will vary according to an individual's circumstances, although there are a number of points of general applicability to be taken into account."
"169. In conclusion, there is an uncertainty around the availability of alternative accommodation, in part because of the constraints imposed by the procedures and because it was not explored in detail in the evidence of the main parties or residents. Residents in their evidence described a lack of assistance from the Council. The reasons why people are living at Pineridge and the shortage of affordable housing in the area indicate that there would be difficulties in securing a new home. However, over the period of time since the provision of the mobile homes, the development has offered homes to people in similar types of housing need. The history of occupancy at the site has shown that previous residents have been able to move to new homes. When account is also taken of the statutory duties of the Council, the probability is that residents would not become homeless. A move from Pineridge was generally regarded by residents as a retrograde step. Alternative accommodation may not provide amenities found at Pineridge, more especially in the short term. However, the accommodation may be of a better standard and offer its own advantages. There is no certainty the outcome would be negative."
"170. The approach to be followed in a planning decision was set out in a series of propositions in the Stevens judgment, which was subsequently endorsed by the Court of Appeal in Collins. The Stevens judgment explains that whilst no other consideration must be regarded as inherently more important than the best interests of any child, that evaluation may alter during the course of the decision making process in the context of the individual case."
"176. The reason for extending the compliance period to 18 months was to enable the occupiers who were resident on the site at the time to find alternative accommodation. The appellant explained subsequent re-lets by reference to the desperate circumstances of those seeking somewhere to live, as well as the income provided. It seems to me that a resident's knowledge of the enforcement notices and the length of the compliance period are relevant. Those residents who came to the site after the failure of the high court challenges in October 2012 should not have had a high expectancy of long term residence or residency beyond June 2015. However, when considering the well-being of the children, it would be wrong in principle to devalue their best interests by something for which they could in no way be held to be responsible."
"185. Ms Miles moved to Pineridge in October 2013 having been homeless at the time and unable to get help from the Council. She now lives there with her daughter who is 1 year old and her newly born son. She has experienced difficult circumstances over care of her child and the security at the site is important to her. She values the support she has had from the staff at Pineridge and at the mobile centre and is not in contact with the rest of her family. She is involved with the on site crèche and her daughter enjoys playing with the other children there. Ms Miles is dependant on financial support and housing benefit and has been on the Council waiting list for a short time.
186. Fair Balance. Ms Miles and her children are a vulnerable family who have found a safe and supportive home at Pineridge. She believes that it would be in the best interests of her children to stay there and Ms Miles fears if she was unable to secure suitable alternative accommodation her children would be separated from her. Her experience to date indicates that finding a new home would be difficult and the potential serious consequences for her children have substantial weight. The interference with home, family and private life would be very serious. Balanced against these conclusions is the cumulative effect of the planning considerations and the substantial harm to the proper planning of the area. Having taken into account all the considerations and interests I conclude that the interference would be necessary and proportionate."
"228. The positive contribution of Pineridge to meeting particular housing needs was taken into account in the overall assessment of the planning merits. This was outweighed by the strong objections associated with its location, environmental impact and broader housing policy objectives. The substantial harm associated with the development would be for a time limited period. Nevertheless, there is no presumption that a development granted a temporary permission should be granted a permanent permission at the end of the stated period. That being so a condition requiring the implementation of a landscape and ecological mitigation scheme would not be reasonable. Furthermore, the housing model that would be permitted at the site, restricted in part by the provisions within the unilateral undertaking, would not ensure controls on a range of matters related to the allocation of accommodation and provision of facilities at the site. The serious conflict with policies to promote sustainable forms of development in terms of their location and effect on the environment would be unacceptable even for the five year period proposed.
229. In the alternative, the assessments showed that the probable difficulty in securing alternative, acceptable and affordable housing would be critical to the seriousness of the outcome for the residents and their families. A purpose of a temporary permission of a year or eighteen months could be to allow additional time for those currently resident of the site to secure alternative accommodation, whether through the Council, other agencies or private provision. This would be a substantial benefit to home and family life and ease anxiety over securing a new home. At the end of the period the expected change would be that most if not all of the units would be unoccupied. A temporary permission in these terms would have the advantage of responding to any specific issues raised as regards equality of opportunity and accommodation needs of those with protected characteristics.
230. Based on recent experience at the site, a difficulty I foresee is that when a unit is vacated it would be let to new tenants. A temporary period would have the same function as the extended compliance period was meant to offer. The probability is that at the end of an eighteen month or two year period a similar set of circumstances would exist as now, with all units occupied. The existence of the prohibitions contained in the enforcement notices would not revive on the expiry of the permission. Moreover the development would be subject to the provisions in the unilateral undertaking, which in the circumstances would not satisfy the policy test of being necessary to make the development acceptable."
Ground One: Did the Inspector Err in Considering the Best Interests of the Children?
i) Failed to take into account a material consideration in striking the planning balance, namely, the elevated status of a negative impact on children; or
ii) Erred in law by failing to understand and apply the special weight to be accorded to the impact on children in decision making.
"The personal circumstances of the residents currently living on the site illustrate on an individual and more specific basis the contribution of the development to meeting housing need. The immediate and ongoing needs for health care and education facilities could be satisfied by accommodation elsewhere. The probability is that most of the families currently on site would not be there in years to come. The appellant has accepted personal planning permission(s) would not be appropriate. These matters reduce the weight to be attached to residents' personal circumstances over and above the weight to the function and contribution of the site more generally. Within this context I attach some weight to personal circumstances."
Discussion and Conclusions
"An Article 8 proportionality assessment is distinct from a consideration of personal circumstances because it takes account of a wide range of circumstances and is of a multi-stranded nature. Its purpose is to determine whether the protected rights of the individual and his family would be disproportionately interfered with if the rights of the community are upheld. As observed in both the Stevens and AZ judgments, in practice the number of cases likely to succeed under Article 8 will be few in number because of the importance of having coherent control over town and country planning to serve the public interest and also to protect the rights and freedoms of other individuals."
"…This means, in my view, that such interests must always be at the forefront of any decision-maker's mind, rather than that they need to be mentioned first in any formal chain of reasoning or that they rank higher than any other considerations. A child's best interests must themselves be evaluated. They may in some cases point only marginally in one, rather than another, direction. They may be outweighed by other considerations pointing more strongly in another direction."
"…But it is not to be assumed in an area of social policy such as planning that article 8 rights (even of children, whose interests must be treated as primary) will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals… In practice, in my view, such cases are likely to be few."
Ground Two: Irrationality
Grounds Three and Four: Proportionality
Discussion and Conclusions
"In terms of the proper approach of the court when dealing with a section 288 application in which article 8 is engaged, so far as relevant to this claim, the following propositions can therefore be derived from the cases.
i) The application does not require a full merits review. It requires review on traditional judicial review grounds, together with consideration of whether the resulting decision engages article 8 and, insofar as it does, whether the adverse impact of the decision on the article 8 rights engaged is proportionate to the legitimate aims sought to be protected (including both the public interest, and the rights and interests of other individuals).
ii) In considering whether the decision breached relevant article 8 rights, the court is required to consider the merits, with appropriate scrutiny, but it should do so bearing in mind that the inspector's function, assigned to him by the statutory scheme and ultimately Parliament, is to consider the merits of all material considerations, including any article 8 rights that are engaged. The inspector is an expert and experienced, and acts in a quasi-judicial capacity, which each warrant a wide margin of discretion. He is acting in an area of social policy, which in itself attracts a wide margin of discretion. As a result, considerable deference ought to be attached to his conclusion.
iii) Proportionality is a question of substance and not form. If the inspector has clearly engaged with the article 8 rights in play, and considered them with care, given his wide margin of discretion, it is unlikely that the court will interfere with his conclusion on grounds of proportionality. If he has not –even if he has not referred to article 8 rights at all – on usual principles, the court will not quash his decision if his error is immaterial. If his error is material, then it is open to the court to find that the interference with the relevant human rights is in any event proportionate; or quash the decision."