Her Honour Judge Belcher :
- This is a statutory application pursuant to Section 288 Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision
of
the First Defendant dated 10 June 2014 in which he dismissed a planning appeal brought by the Claimant. The Second Defendant did not appear before me and has taken no active part in these proceedings. References in this judgment to the trial bundle will be by the capital letter "B" followed by the relevant page number or numbers. References in this judgment to the authorities bundle will be by the capital letters "AB" followed by the relevant Tab number. The authorities bundle is not paginated and any reference to page numbers will therefore be to the internal pagination
of
the relevant law report.
The Facts
- This case concerns a site
of
approximately 4 hectares at Ten Acre Farm, Norton Common Road, Norton, Doncaster ("the Site"). The site is a strip
of
agricultural land within the South Yorkshire Green Belt. The Claimant is a Romany Gypsy and it is agreed that she and her family fall within the planning definition
of
Gypsies and Travellers. They moved onto the Site in April 2009. The Claimant and her husband sought retrospective planning permission
for
their use
of
the Site which was refused by the
local
planning authority. On 14 December 2009 planning permission was granted on appeal
for
the change
of
use
of
the land to mixed use
for
keeping horses and as a residential caravan site. The residential use was subject to conditions limiting that use to a period
of
3 years, and requiring that no more than 3 caravans should be stationed on the land at any one time,
of
which no more than 1 should be a static caravan or mobile home.
- On 13 October 2012 the Claimant and her husband sought further planning permission
for
mixed use
for
keeping horses and as a residential caravan site, but without the previous restrictions on the residential use. On 7 October 2013, the Second Defendant, Doncaster Metropolitan Borough Council, refused that application. The Claimant appealed and a Hearing was held on 22 January 2014. On 23 January 2014 the
Secretary of State for Communities
and
Local Government
("the
Secretary of State
") recovered the appeal
for
determination by himself, because it relates to a traveller site within the Green Belt. On 4 March 2014, the report
of
the Planning Inspector (Bern Hellier) to the
Secretary of State
was completed (B19-36). It recommended dismissal
of
the appeal. On 10 June 2014 the
Secretary of State
dismissed the appeal (B13-17).
- In these proceedings the Claimant challenges only the
Secretary of State
's refusal
of
temporary planning permission. It is
of
relevance to the challenge that on 2 April 2014 a planning inspector, Mr Richard Clegg, granted temporary planning permission on appeal
for
a site on the south east side
of
Flashley Carr Lane, Moss, Doncaster following a 7 day inquiry ("the Flashley Carr Lane Decision"). The permission granted in that case was
for
change
of
use
of
land to a gypsy site
for
a limited period
of
4 years from the date
of
the decision (B134-152). I shall consider that decision in more detail below.
The Law
- By S288 TCPA 1990 an application may be made to the Administrative Court in respect
of
a decision by or on behalf
of
the
Secretary of State
on the grounds either (i) that it was not within the powers
of
the Act and/or (ii) that any relevant requirements have not been met, leading to substantial prejudice to the applicant's interests. If the grounds
of
challenge are made out, this Court's powers are limited to quashing the decision.
- I adopt from Mr Willers' skeleton argument (slightly amended at iv below) the following agreed propositions
of
law which the court must bear in mind when considering applications under S288 TCPA 1990:
i) The decision maker is not writing an exam paper and his decisions must be read in good faith (see AB Tab 1: South Somerset DC
v Secretary of State for
the Environment [1993] 1 PLR 80 at 83E-G and 87F-G);
ii) Questions
of
planning judgment are
for
the decision maker and not
for
the Court which should not substitute its own judgment (see AB Tab 2: City
of
Edinburgh
v Secretary of State for
Scotland [1997] 1 WLR 1447 at 1458G-1459D);
iii) The weight to be attached to material considerations and matters
of
planning judgment are within the exclusive jurisdiction
of
the decision maker (see ELS Wholesale (Wolverhampton)
v Secretary of State for
the Environment (1987) P&CR 69);
iv) The requirement to take account
of
relevant matters is a requirement to take into account a matter which might cause the decision maker to reach a different conclusion to that which he would reach if he did not take it into account – by "might" is meant that it is clear that there is a real possibility that the consideration
of
the matter would have made a difference to the decision (see AB Tab 3: Bolton MBC
v Secretary of State for
the Environment (1990) 61 P&CR 343 at 352-353)
v
) The duty on a decision maker is to have regard to every material consideration; he need not mention them all but it is necessary
for
the decision maker to
state
his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues (see AB Tabs 4 and 5: Bolton MDC
v Secretary of State for
the Environment [1995] 3 PLR 37 and South Bucks DC
v
Porter (No. 2)[2004] 1 WLR 1953 per Lord Brown at paragraph 36)
vi) Reasons must be proper, intelligible and adequate – they can be briefly stated but must not give rise to a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision making process, but such an adverse inference will not be readily drawn (see AB Tab 5: South Bucks DC
v
Porter (No. 2)[2004] 1 WLR 1953 per Lord Brown at paragraph 36);
vii)
For
a decision letter to be perverse it must be one which no reasonable person in the position
of
the decision maker, properly directing himself, could have reached (see AB Tab 6: Seddon Properties Ltd
v Secretary of State for
the Environment (1981) 42 P&CR 26. See also Associated Picture Houses
v
Wednesbury Corporation [1948] 1KB 223 and Fenton
v
SSETR [2000] JPL 1179);
viii) If the court identifies an error
of
law it has a discretion whether or not to quash the decision – the error
of
law must materially affect the decision taken (see AB Tab 3: Bolton MBC
v Secretary of State for
the Environment [1990] 61 P&CR 343).
To the above list Mr Whale added the following propositions:
ix) It is only in limited circumstances in which it can be contended that a decision maker has erred in law by reference to a point not raised before him (see AB Tab 12: Humphris
v Secretary of State for Communities
and
Local Government
[2012] EWHC 1237 (Admin) at paragraph 23, per Ouseley J);
x) A decision maker's conclusions on permanent planning permission should be read across into the reasoning on temporary planning permission (see AB Tab 13: Delaney
v Secretary of State for Communities
and
Local Government
[2012] EWHC 1303 (Admin) at paragraphs 45 and 54: upheld by the Court
of
Appeal: AB Tab 14)
- A planning authority must determine an application
for
planning permission in accordance with its development plan
for
its area unless material considerations indicate otherwise. In this case it is agreed that the following national guidance was relevant to the determination
of
the Claimant's application
for
planning permission: the guidance on protecting Green Belt land contained in the National Planning Policy Framework ("the Framework") and the Planning policy
for
traveller sites ("the PPTS"). I was not provided with a copy
of
the Green Belt guidance but it was accepted that it is accurately quoted and summarised in Lewis J's judgment in Connors and Others
v Secretary of State for
the Environment [2014] EWHC 2358 (Admin) (AB Tab 16) in the following terms:
"16. Section 9
of
the Framework deals with protecting Green Belt Land. Paragraphs 79 and 80 provide as follows:
"79. The
Government
attaches great importance to Green Belts. The fundamental aim
of
Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics
of
Green Belts are their openness and their permanence.
80. Green Belt serves five purposes;
- To check the unrestricted sprawl
of
large built up areas
- To prevent neighbouring towns merging into one another;
- To assist in safeguarding the countryside from encroachment;
- To preserve the setting and special character
of
historic towns; and
- To assist in urban regeneration, by encouraging the recycling
of
derelict and other urban land.
18. Paragraphs 87 and 88
of
the Framework provide as follows:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in exceptional circumstances.
88. When considering any planning application,
local
planning authorities should ensure that substantial weight is given to any harm to the Green Belt. "Very special circumstances" will not exist unless the potential harm to the Green Belt by reason
of
the inappropriateness, and any other harm, is clearly outweighed by other considerations."
- There is no dispute that the land in question is Green Belt land and that the proposed development is inappropriate development, by definition harmful to the Green Belt.
- The PPTS (AB Tab 8) sets out
government
planning policy
for
traveller sites and
states
that it should be read in conjunction with the Framework (Paragraph 1). Paragraph 3 provides as follows:
"The
Government
's overarching aim is to ensure fair and equal treatment
for
travellers, in a way that facilitates the traditional and nomadic way
of
life
of
travellers while respecting the interests
of
the settled community."
- Paragraph 4 sets out a number
of
aims in respect
of
traveller sites designed to achieve the overarching aim in paragraph 3. These include that
local
planning authorities should assess need
for
the purposes
of
planning, identify land
for
sites, plan
for
sites over a reasonable time scale, protect Green Belt, increase the number
of
traveller sites in appropriate locations, promote more private traveller sites, and to reduce the number
of
unauthorised developments. The PPTS then goes on to set out a series
of
policies. Policy B, "Planning
for
Traveller Sites" requires
local
planning authorities in producing their
Local
Plan to identify and update annually a supply
of
specific deliverable sites to provide 5 years worth
of
sites against locally set targets.
- Policy E specifically relates to "Traveller Sites in Green Belt" and provides as follows:
"14. Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development.
15. Green Belt boundaries should be altered only in exceptional circumstances. If a
local
planning authority wishes to make an exceptional limited alteration to the defined Green Belt boundary (which might be to accommodate a site inset within the Green Belt) to meet a specific, identified need fro a traveller site, it should do so only through the plan-making process and not in response to a planning application. If land is removed from the Green Belt in this way, it should be specifically allocated in the development plan as a traveller site only."
The Grounds
of
Challenge
- The Claim Form contains 5 Grounds
of
Challenge (B 4-5). Ground 3 was not pursued before me. The remaining Grounds, limited to a challenge to the refusal
of
temporary planning permission, are as follows:
i) Ground 1: The
Secretary of State
's conclusion that "the planning circumstances in the area are unlikely to change in the near future" was inconsistent with the conclusion reached by one
of
his Inspectors in the Flashley Carr Lane Decision issued on 2 April 2014;
ii) Ground 2: Alternatively, the
Secretary of State
failed to explain properly or at all why he had decided to take a different view to that
of
his Inspector in the Flashley Carr Lane Decision on the question whether there was an expectation that there would be a change in the planning circumstances at the end
of
the period
for
which temporary planning permission was sought;
iii) Ground 4: The First Defendant has erred in law in that he has treated the harm to the Green Belt by reason
of
inappropriateness as inherently more weighty than the best interests
of
the children living on the land, in breach
of
Article 3(1) if the United Nations Convention on the Rights
of
the Child ("UNCRC") and Article 8
of
the European Convention on Human Rights ("ECHR");
iv) Ground 5: Further or alternatively, the First Defendant failed to explain why he concluded that the best interest
of
the children living on the land should only be attributed modest weight.
Grounds 1 and 2.
- As they relate to the same issue, it is convenient to consider Grounds 1 and 2 together, as indeed the advocates did in their submissions. These grounds relate to the inconsistencies in the decisions
of
the Inspector in the Flashley Carr Lane decision and the decision
of
the
Secretary of State
in this case. This relates to the findings as to whether the planning circumstances, in this case the likelihood or otherwise
of
further traveller sites being available, are expected to change. In the Flashley Carr Lane Decision issued on 2 April 2014 the Inspector, Richard Clegg, having refused permission
for
a permanent development
for
the proposed gypsy site on the basis that the harm suffered would not be outweighed by the considerations providing support, made the following findings;
"PPG explains that a temporary permission may be acceptable where the planning circumstances are expected to change at the end
of
the period concerned. There is a realistic prospect
of
sites coming forward in accordance with the emerging DPD, since adoption is anticipated later this year. Allowing time
for
sites to be developed thereafter, and taking account
of
the time required
for
the submission
of
schemes and site preparation, I consider that four years would be an appropriate period
for
a temporary permission…….
…taking into account all material considerations, including that it is in the best interests
of
the children to live on a settled base to avoid disruption to their education, I am satisfied that the legitimate aim
of
protecting the country side can only be adequately safeguarded by preventing permanent occupation
of
the site, and interference with the human rights
of
the families is, therefore, necessary. Restriction
of
planning permission to a temporary period is necessary and proportionate, and it would not result in a violation
of
the human rights
of
the prospective site occupants" (B 147-148, paragraphs 52 and 53).
- Mr Willers made the point that the Inquiry in that case heard evidence from a number
of
people (listed at B151) and sat
for
a period
of
7 days (listed at B134). He submitted it is clear from the decision, and in particular the documents submitted by the
local
planning authority (listed at B151) that the issue
of
the likelihood
of
future provision
of
traveller sites was considered in some detail.
- The report
of
Planning Inspector Bern Hellier in relation to the Site is dated 4 March 2014 and follows a 1 day Hearing held on 22 January 2014. Having recommended that permanent permission is not appropriate, he goes on to consider temporary permission and concludes as follows:
"The advice in Circular 11/95 is that a temporary permission is only justified when it is expected that the planning circumstances will change in a particular was at the end
of
the temporary period. In the Doncaster area I am not persuaded that circumstances will change greatly in the near future. The SPDPD refers to opportunities
for
new provision but does not allocate new sites ….
If it is accepted that new sites and opportunities would open up with the adoption
of
the SPDPD then a two year temporary consent would give time, following adoption,
for
sites to be brought on stream…..
….I conclude that the harm from a temporary permission
of
two years would be substantial and would not be clearly outweighed by other considerations as set out above, including the significant weight that should be given to the absence
of
a five year supply
of
deliverable sites." (B32, paragraphs 59 and 61)
- I was not told the distance between the Flashley Carr Lane site and the Site. However it is clear from the Flashley Carr Lane Decision that the site in that case is about 6.03km from Askern and about 5.53km from Stainforth (B137, paragraph 15). In relation to the Site, the Planning Inspector
states
in his report that it "….is in a reasonably accessible location on a bus route into Askern…." (B23, paragraph 17). It is described in the Claimant's Statement
of
Case
for
the Appeal to the Planning Inspector, as "....just a short distance North
of
Askern" (B57, paragraph 2.7). What is clear is that the Site and the Flashley Carr Lane site are reasonably proximate, certainly
for
the purposes
of
findings as to future provision
of
traveller sites in the area. Counsel did not seek to suggest otherwise.
- At the time that the Planning Inspector's report in relation to the Site was finalised, the Flashley Carr Lane Decision had not been published. However, by the time
of
the
Secretary of State
's decision on the recovered appeal on 10 June 2014, the Flashley Carr Lane Decision had been issued and in the public domain
for
just over 2 months. The
Secretary of State
's decision letter adopts the Inspector's reasoning:
"
For
the reasons given by the Inspector in IR59 the
Secretary of State
concludes that planning circumstances in the area are unlikely to change greatly in the near future… he gives significant weight to the lack
of
a five year supply
of
deliverable sites…..He agrees with the Inspector (IR61),
for
the reasons given in IR59 and 60, that the harm from a temporary permission would not be clearly outweighed by other considerations." (B16, paragraph 18)
- Mr Willers submitted that it was not up to Mrs
Dear
and her representatives to point out to the
Secretary of State
the relevance
of
his own Inspectors' decisions in the same district or borough. He submitted that the
Secretary of State
should have informed himself
of
what his Inspector in another gypsy/traveller case had determined in terms
of
a key issue, the likely future provision
of
traveller sites, an issue equally key in the case the
Secretary of State
had recovered to determine himself. He pointed out that the 2 appeals were live at the same time. When Mr Bern Hellier was hearing the appeal in this case on 22 January 2014, the hearing in the Inquiry on Flashley Carr Lane had finished and was awaiting a decision. The fact
of
the outstanding Inquiry decision was known to Inspector Bern Hellier as is clear from the Doncaster Council's Hearing Statement
for
his Inquiry (B39, 41, 42 and 44). It is also mentioned in Mrs
Dear
's Statement
of
Case to Inspector Bern Hellier (B57, paragraph 2.12). Mr Willers submitted that all this documentation should have gone to the
Secretary of State
who, therefore, had knowledge
of
the Flashley Carr Lane Appeal. He further submitted that the
Secretary of State
should have established whether the decision had been issued and that it must be unarguable that the
Secretary of State
should do his best to ensure consistency between his decisions and those
of
his Inspectors who are standing in his stead where decisions are not recovered. He reminded me that the two decisions are within a couple
of
months
of
each other, both in relation to gypsy sites in the same area and with the same key factor in relation to temporary planning permission, but with wholly inconsistent conclusions as to the likely future availability
of
traveller sites in the Borough.
- Mr Willers recognised that he cannot submit that a temporary permission would be granted in this case. However he submitted that if the
Secretary of State
wanted to distance himself from the Flashley Carr Lane Decision conclusions on this key factor, he should have explained why he had taken that decision. There is no reference at all to the Flashley Carr Lane Decision in the
Secretary of State
's decision letter in relation to the Site. The question he submitted is whether it is clear that there is a real possibility that consideration
of
the conclusions
of
the Flashley Carr Lane Decision would have made a difference to the
Secretary of State
's decision. He submitted we cannot second guess the position and that the decision should be quashed.
- Mr Willers referred me to the Court
of
Appeal decision in North Wiltshire DC
v Secretary of State for
the Environment (1993) 65 P&CR 137 (AB Tab 7) and in particular to the following passage from the judgment
of
Mann LJ at page 145:
"In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable
of
being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable
of
being material is that like cases should be decided in a like manner so that there is consistency in the appeal process. Consistency is self evidently important to both developers and development control authorities. But it is also important
for
the purpose
of
securing public confidence in the operation
of
the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment
of
another but before doing so he ought to have regard to the importance
of
consistency and to give reasons
for
departure from the previous decision.
To
state
that like cases should be decided alike presupposes that the earlier case is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test
for
the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect
of
the decision in the previous case? The areas
for
possible disagreement cannot be defined but they would include interpretation
of
policies, aesthetic judgments and assessment
of
need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons
for
departure from it."
- Mr Whale's first point can be disposed
of
very quickly. He submitted that this case and the Flashley Carr Lane Decision are not like cases because this case is a Green Belt case and the Flashley Carr Lane Decision was not. I reject that submission. The relevant issue
for
the purposes
of
considering the arguments on consistency is whether there is likely to be a future supply
of
traveller sites within a reasonable time such that a grant
of
temporary planning permission might be appropriate. An express finding was made in the Flashley Carr Lane Decision which is not consistent with the later conclusions
of
the
Secretary of State
in this case. I regard the issue
of
Green Belt/non Green Belt as wholly irrelevant when considering the arguments as to consistency in decisions/ the giving
of
reasons to support departing from an earlier decision.
- Mr Whale submitted that the
Secretary of State
gave adequate and intelligible reasons
for
reaching his conclusion that planning circumstances in the area are unlikely to change greatly in the near future, in particular that the SPDPD does not allocate new sites, does not add materially to the policy framework already in place with Core Strategy Policy CS13, and that there is still uncertainty because the soundness
of
SPDPD is subject to unresolved objections and has still to be tested on examination. I accept that those reasons are intelligible and adequate on the face
of
the decision, but the submission fails to address the issue
of
inconsistency.
- Mr Whale's next point was to pick up on Mr Willers' suggestion that the
Secretary of State
had a duty to make himself cognisant
of
the decisions
of
inspectors appointed by him. He sought to draw a distinction between the realities
of
the fact that the Flashley Carr Lane Decision was taken by an Inspector whereas the decision in this case was taken by the
Secretary of State
himself. I cannot accept that distinction. The Inspector is appointed by the
Secretary of State
and is exercising the delegated powers
of
the
Secretary of State
. In my judgement, as a matter
of
legal form, the
Secretary of State
must be deemed to have made both decisions.
- Mr Whale's final submission on these points was that even if I accept the premise that the
Secretary of State
took both decisions, the Claimant still fails in this case as the burden
of
persuading the
Secretary of State
that very special circumstances exist in a Green Belt case is on the applicant
for
planning permission. Therefore, he submitted, it was
for
Mrs
Dear
to put forward the relevant considerations such as considerations affecting the children and their education, health considerations and any other relevant considerations, including, in this case, the Flashley Carr Lane Decision if she wished to rely on it. He submitted that Mrs
Dear
was professionally represented by Mrs Heine who was plainly well aware
of
the Flashley Carr Lane Inquiry. On 24 April 2014, after the Flashley Carr Lane Decision had been issued, Mrs
Dear
made further representations to the
Secretary of State
about changes in her personal circumstances. Those representations were not invited but were considered and are referred to in paragraph 6
of
the
Secretary of State
's decision (B14). Mr Whale submitted that there was nothing to preclude Mrs
Dear
from making further representations at that time as to the Flashley Carr Lane Decision which, he said, her representatives plainly knew about. He also relies on these matters as relevant to the exercise
of
my discretion as to whether to quash the decision on temporary planning permission if I were to find any
of
the Grounds to be made out.
- Mr Whale referred me to the decision
of
Ouseley J in Humphris
v Secretary of State for Communities
and
Local Government
[2012] EWHC 1237 (Admin) ("Humphris"). In that case Ouseley J was considering a S288 TCPA 1990 appeal against a decision
of
a Planning Inspector dismissing an appeal against refusal
of
planning permission
for
the erection
of
a house on the land in question. There was a mobile home on the land in question and an enforcement notice was issued
for
the discontinuance
of
the use
of
the mobile home
for
residential purposes. The two appeals, one against the Enforcement Notice and the second against the refusal
of
planning permission came before 2 different Planning Inspectors. The Enforcement Notice Appeal was heard on 14 December by an Inspector, Mr Woolnough. He issued his decision letter on 24 January 2011 accepting that a mobile home or caravan was present on the site
for
the whole
of
the relevant period but rejecting the alleged residential use
of
the mobile home
for
the whole
of
that period, concluding that initially at least it was used only as an occasional overnight shelter by riding centre staff.
- On 11 January 2011 a different Inspector, Mr Hogger, held a hearing into the Claimant's appeal against the refusal
of
planning permission
for
the erection
of
a house. This was after the inquiry into the enforcement notice but before that decision was issued. Mr Hogger's decision was issued on 5 February 2011, some 10 days after Mr Woolnough's decision. Mr Hogger was well aware
of
the planning inquiry into the enforcement notice and advised the parties that he would not publish his decision until he had had time to consider the deliberations
of
the other inspector. Further Mr Hogger agreed with the parties that if the enforcement notice was upheld he would determine the appeal based on the evidence before him. However if the appeal was successful (involving a finding
of
the caravan being immune from enforcement control and therefore potentially relevant to the S78 appeal since the issue
of
potential detriment to the openness
of
the land would arise), then he would seek the written views
of
the parties. Both parties were satisfied with that approach. No party sought to make representations to Mr Hogger on Mr Woolnough's decision letter in the 10 days between the issuing
of
the two decision letters.
- Before Ouseley J a new point was argued, a point not put to or raised in any way with Mr Hogger. This was that Mr Hogger ought not to have treated the site as a site that would be clear
of
a mobile home but rather as a site on which a caravan could be stationed (even if not used
for
residential purposes) and that this was, therefore, relevant to the decision about the openness
of
the land as there would be a caravan there. At paragraphs 22 and 23
of
his judgment Ouseley J said this:
"Mr Lopez, therefore, as he recognised, in is the unattractive, but, he says, nonetheless tenable, position
of
raising a point which was not raised before the inspector
for
his decision. He says he is entitled to do that because the meaning
of
the enforcement notice is a matter
for
the proper interpretation
of
the notice and its consequences are clear in the light
of
the enforcement notice decision letter and the inspector has simply got it wrong – a point which he is entitled to take.
I reject that approach. Whatever may be the limited circumstances in which it can be contended that the inspector has reached a decision that is erroneous in law and beyond his powers by reference to a point not raised in front
of
him, this is not one
of
them. This is not a point that has not been available to be taken; it is not a point that can be described as an error
of
fact which has become an error
of
law not known to the parties at the time. It is not a point where it can be said it has arisen without the parties being given an opportunity to deal with it; it is clear that the inspector at the section 78 hearing was alive to the problems which the enforcement notice decision might create and sought to provide the means whereby it could be dealt with. This is not a pure point
of
law either. The existence
of
the fallback position may require the examination
of
fact, and conclusions as to fact and degree. The significance
of
the fallback position most certainly is capable
of
giving rise to a judgment
of
fact and degree. Those matters, available to be raised before the inspector, should have been raised before the inspector. If not raised, in my judgment, it cannot be said he has omitted to consider a material consideration; nor in my judgment, can it be said that his reasoning is inadequate by reference to an issue not raised before him…"
- Mr Whale submitted that the above paragraphs from the judgment
of
Ouseley J apply here. He submitted that having had the opportunity to make further representations, and having done so in relation to different matters, it is not open to the Claimant now to criticise the
Secretary of State for
not referring to the Flashley Carr Lane Decision. He pointed out that Ouseley J is an experienced planning Judge having previously been an experienced planning silk. That is undoubtedly right. However, Humphris was not a case concerned with the issue
of
consistency with previous decisions. The issue raised in front
of
Ouseley J in that case arose out
of
the alleged interpretation
of
the decision on the Enforcement Notice appeal, a decision which was inevitably fully within the knowledge
of
the Claimant since he was a party to both appeals. Further the earlier decision was expressly awaited and considered by the second inspector and the parties, including the Claimant, had agreed his proposals as to how to deal with the earlier decision once it was published. In my judgement that is very different from the situation here.
- In response to Mr Whale's submissions on this point, Mr Willers pointed out that although it is clear from her submissions to the Inspector that Mrs Heine was aware
of
the fact
of
the Flashley Carr Lane Inquiry, it does not follow that she was aware
of
the Flashley Carr Lane Decision or the detail thereof. She was not representing any party in the Flashley Carr Lane Inquiry and is not on the list
of
those parties, witnesses or interested persons in that Inquiry (B151). He submitted I cannot properly conclude that she knew
of
the decision.
- Mr Willers pointed out that in this case the
Secretary of State
was alerted to the fact that the forthcoming decision in the Flashley Carr Lane Inquiry would be important, at least in relation to the issue
of
need. Mrs Heine had referred to it in her Statement
of
Case on behalf
of
Mrs
Dear
(B57, paragraph 2.12) in relation to unmet need. This was disputed by Doncaster Council in its reply at B42 (the reply refers to paragraph 2.10
of
Mrs Heine's submission but it was agreed in front
of
me that this was an error and was plainly a response to paragraph 2.12). The Council stated as follows:
"Finally it is not the case that the Flashley Carr Inquiry discussed figures
of
164 pitches over 5 years. The appellants made various claims, however the decision on the case is awaited and many
of
these suggestions were based on various assumptions and no detailed planning histories and information on site." (B42)
- Mr Willers recognised that the parties were addressing the issue
of
unmet need rather than the likelihood
of
further traveller site provision in the future. However, he submitted that both the Inspector, Mr Hellier, and the
Secretary of State
were alerted to the forthcoming decision in the Flashley Carr Lane Inquiry and that it would be important. He submitted that the
Secretary of State
should be cognisant
of
decisions in his name, whether or not flagged up in the materials before him. In any event, he submitted that the awaited decision was flagged up in this case and the
Secretary of State
should have considered the decision and issues
of
consistency.
- I tend towards the view that Mr Willers' broader proposition that the
Secretary of State
should be cognisant
of
decisions in his name, whether or not flagged up in the materials before him, is correct. It seems to me that the
Secretary of State
cannot avoid the issue
of
consistency by suggesting that it was
for
Mrs
Dear
to inform him
of
decisions made on his behalf after the close
of
her appeal. However I do not need to go that far in this case since the awaited decision in this case was clearly flagged in the materials, albeit on a different point. In my judgment the
Secretary of State
should have had regard to the Flashley Carr Lane Decision. Had he done so he would then have had to address the issue
of
consistency head on, either by accepting and following the findings in the Flashley Carr Lane Decision as to future traveller sites coming forward, or to have expressly departed from that decision giving clear and proper reasons
for
doing so. He has done neither. I note in passing that had the
Secretary of State
's decision been the first in time, the same issue would have arisen
for
the Inspector in the Flashley Carr Lane Inquiry. It follows that I find
for
the Claimant on Grounds 1 and 2.
- Mr Whale submitted that even if Grounds 1 and 2 are made out, it is clear that temporary planning permission would have been refused in any event. He submitted that the Claimant's complaint about the Flashley Carr Lane Decision is academic. He relied upon paragraph 60
of
the Inspector's report where he concludes that the harm to the Green Belt from a temporary permission would still be substantial (B32). He also relied upon paragraph 18
of
the
Secretary of State
's decision letter:
"He further concludes, in agreement with the Inspector, that even were more sites to be made available over the period
of
the two year consent, the harm to the Green Belt would still be substantial. Against this he weighs the accommodation needs and personal circumstances
of
the appellants, and gives significant weight to the lack
of
a five year supply
of
deliverable sites. However he agrees with the Inspector (IR61)
for
the reasons given in IR59 and 60, that the harm from a temporary planning permission would not be clearly outweighed by other considerations" (B16)
- Mr Whale submitted that in the light
of
those paragraphs I cannot properly conclude that it is clear that there is a real possibility that a consideration
of
the Flashley Carr Lane Decision, and in particular the issue as to the future availability
of
traveller sites, would have made a real difference to the decision in this case, given the findings as to the substantial harm to the Green Belt even on a temporary 2 year consent. He submitted that if I am uncertain as to that, I must come down in favour
of
the decision maker, in this case the
Secretary of State
. Here, he submitted, the
Secretary of State
has clearly considered the harm to the Green Belt on the one hand and on the other side
of
the scales has considered all the other considerations which might weigh in favour
of
a temporary planning permission and has still reached the conclusion that the considerations in favour
of
the grant
of
a temporary permission do not clearly outweigh the harm to the Green Belt. That he submitted would still be the case even if the factual issues in the Flashley Carr Lane Decision as to the future availability
of
traveller sites are factored into this decision. The
Secretary of State
expressly stated that even if more sites were available, the harm to the Green Belt would be substantial and that the harm from a temporary planning permission would not be clearly outweighed by other considerations.
- I note that those remarks are made in the context
of
consideration
of
a possible 2 year temporary permission, that is until June 2016. The Flashley Carr Lane Decision considered that sites would not be available
for
4 years, that is not until April 2018. Whilst not expressly considering the longer period, it seems to me that if the harm from a temporary 2 year planning permission would not be outweighed by the other relevant considerations, I cannot properly conclude that it is clear that there is a real possibility that a consideration
of
the Flashley Carr Lane Decision, and in particular the possibility
of
sites being available in April 2018, a period almost 2 years longer than that considered by the Inspector and the
Secretary of State
in this case, would have made a difference to the decision in this case.
- In those circumstances I accept Mr Whale's submissions that the issues as to consistency with the Flashley Carr Lane Decision and/or the failure to give reasons
for
departing from that decision are academic in the circumstances
of
this case. It follows that whilst I have found Grounds 1 and 2 are made out, an order quashing the decision on the temporary planning permission will not follow on those Grounds since it would be academic on the facts and circumstances in this case.
- Before leaving Grounds 1 and 2, I should deal with Mr Willers' submission that the
Secretary of State
has got the test wrong when he uses the word "greatly" in the phrase that he "…concludes that planning circumstances in the area are unlikely to change greatly in the near future." (B16, paragraph 18). The formulation in the guidance is "…it is expected that the planning circumstances will change in a particular way…." (AB Tab 14, paragraph 8). I accept Mr Whale's submission that there is nothing in this point. He reminds me
of
the approach
of
Hoffmann LJ in South Somerset District Council
v Secretary of State for
the Environment [1993] 1 PLR 80 (AB Tab 1), at page 83 "The inspector is not writing an examination paper on current and draft development plans". The
Secretary of State
was plainly aware
of
the Guidance having drawn it to the attention
of
the parties and sought their representations. I agree with Mr Whale that the language used in the decision letter should be read in a straight forward manner and that at best, this is a forensic point with no prejudice to the Claimant.
- Finally on Grounds 1 and 2, I should deal with Mr Whale's submission that even if I identified an error
of
law I should exercise my discretion not to quash the decision. Strictly speaking this argument no longer arises given my decision that it would be academic to quash the decision in any event. However I consider it appropriate to deal with it. Mr Whale submitted that I should exercise my discretion not to quash the decision based on Mrs
Dear
's failure to raise the issues arising from the Flashley Carr Lane Decision in further representations to the
Secretary of State
in the period between the publication
of
the Flashley Carr Lane Decision and the decision
of
the
Secretary of State
in this case. I do not in fact have any evidence that Mrs
Dear
or her representatives had knowledge
of
that decision either in general terms or in any detail. Mrs Heine is plainly a professional involved in planning matters concerning travellers and it seems likely that she would have been aware, at least in general terms,
of
the Flashley Carr Lane Decision. However I have no evidence
of
that and there is certainly nothing to support Mr Whale's submission that Mrs Heine knew
of
the Flashley Carr Lane Decision, and none that she knew the specific detail
of
it. In those circumstances I reject Mr Whale's submission that those matters are relevant to and would have militated against the making
of
an Order quashing the temporary planning permission.
Grounds 4 and 5
- It is convenient to take these two Grounds together since they both relate to the issue
of
whether the
Secretary of State
has failed to give due weight to the interests
of
the children living on the land and/or whether he has given adequate reasons
for
giving those interest "modest weight".
- If made out, these Grounds would be relevant not only to the grant or refusal
of
a temporary planning permission but also to a permanent planning permission, a point which Mr Whale submitted may be telling. The inference was that Mr Willers well knew these Grounds were weak. Mr Willers accepted that he has run the arguments on these Grounds in a couple
of
cases without success, albeit he suggests the facts in this case are different. He also told me that it is accepted that even if he were successful on these Grounds, the decision on a permanent permission was likely to be the same.
- Mr Willers submitted that the
Secretary of State
had erred in law in that he had treated the harm to the Green Belt as inherently more weighty than the best interests
of
the children living on the land. The Claimant lives with her children in the caravans stationed on the land. Two
of
the children are
of
school age. One attends the
local
primary school. The other receives home tuition. It was accepted by the Inspector and by the
Secretary of State
that if no planning permission was granted the family was likely to end up moving around, effectively living on the roadside, with inevitable disruption to the family and to the education
of
the younger child.
- Mr Willers referred me to the speeches
of
Baroness Hale and Lord Kerr in ZH (Tanzania)
v Secretary of State for
the Home Department [2011] 2 AC 166 ("ZH (Tanzania)"), (AB Tab 9), a case well known to all involved in administrative law. There is no dispute between Counsel that the principles set out in ZH (Tanzania) apply to the decision making process in planning appeals relating to gypsy and traveller sites. It follows, applying ZH (Tanzania), that the best interests
of
the children in this case must be a primary consideration. That is not the same as being the primary consideration or the paramount consideration.
- Given that this case involves Green Belt land and that Paragraph 88
of
the Framework (set out in paragraph 7 above) requires that substantial weight is given to any harm to the Green Belt, Mr Willers submitted that in order to give proper weight to the best interests
of
the children and to make those interests a paramount consideration, those interests must be assigned substantial weight at the outset. In other words if they are not given the same weight as the Framework guidance gives to the harm to the Green Belt at the outset, they are not being treated as a primary consideration.
- Mr Whale accepted that inherently the best interests
of
the children must carry no less weight than other factors and that because this is a Green Belt case, the best interests
of
the children must start as "substantial". He submitted that if they started as significant that would also be sufficient based on the decision
of
Lewis J in Connor and Others
v Secretary of State for Communities
and
Local Government
[2014] EWHC 2358 (Admin).
- The thrust
of
Mr Willers' submission is that the balance at the outset must be that harm to the Green Belt on the one hand and the children's best interest on the other must both be given substantial weight. Thereafter, in assessing other relevant factors and how these two interests will ultimately be weighed against each other, he submitted one or other
of
the harm to the Green Belt or the best interests
of
the children could be adjusted upwards in weight as part
of
the judgment
of
balancing
of
the competing interests, but that neither could be reduced downwards. In other words "substantial" is the bottom line and anything less than that is wrong. In this case, in his decision letter the
Secretary of State
concluded "…that the best interests
of
the children are a primary consideration…" (B15, paragraph 13). He plainly addressed the correct test. In reaching his final conclusions, the
Secretary of State
adopted the reasoning
of
his Inspector and gave "modest weight" to the family's personal circumstances (B16, paragraph 17).
- Mr Whale submitted that Mr Willers' argument is contrary to authority and is a matter
of
form rather than substance. He referred me to the judgment
of
Hickinbottom J in Stevens
v Secretary of State for Communities
and
Local Government
[2013] EWHC 792 (Admin) ("Stevens"), (AB Tab 10), a case dealing, amongst others, with exactly this issue. He referred me in particular to paragraph 63
of
Hickinbottom J's judgment where he said this:
"The "weight"
of
a consideration is merely a reference to the importance attached to it……… In other words, before any consideration
of
the individual circumstances
of
the child or any other material considerations, the best interest
of
any child can be said to have "a substantial weight" in the sense
of
an importance that no other consideration exceeds; but that evaluation may alter once the individual circumstances
of
those interests and other factors are considered and assessed. Therefore, whilst it might be said at a policy level that a particular factor should be given a particular "weight" (e.g. "moderate" or "substantial"), where it is the very function
of
a decision-maker to attach weight to considerations which are material to the decision he is required to make, as he proceeds with his examination
of
the circumstances
of
the individual case, he must adjust the relative weighting to that which, in his judgment, the circumstances
of
the case require. On examination
of
all the material factors, the importance
of
one consideration may reduce (or,
of
course, increase), compared with others. There is no reason why any change cannot properly be reflected in the designation given to the weight
of
those factors: it is not sensible to require a decision-maker to stick formulaically with the designation he is required to start with The matter is one
of
substance not form. That applies equally to weight or importance that policy documents such as PPG2 require to be afforded to particular planning public policy factors, and to the weight or importance that article 3
of
the UNCRC requires as a matter
of
policy to be given to the best interest
of
a child."
- In his skeleton argument Mr Willers challenges the approach
of
Hickinbottom J. He accepts that after the consideration
of
the individual circumstances, other factors may earn and even exceed the substantial weight to be accorded to the best interests
of
the child, but he submits that the decision maker cannot achieve that balancing act by reducing the weight to be given to the bests interests
of
the child. I cannot accept that submission. Whilst not binding on me the decision
of
Hickinbottom J is plainly persuasive. In any event I share Hickinbottom J's view that this is a matter
of
form rather than substance. Mr Willers accepts, as he must, that ordinarily, the weight to be attached to a particular consideration in a planning appeal will be
for
the decision maker. In my judgement, provided the decision-maker ascribes the correct weight at the outset, in carrying out any adjustment to the weighting when considering the individual circumstances
of
the case, it matters not whether he reduces the weight on one side
of
the balance, or increases the weight on the other. The effect will be the same.
- Further, in any event the Court
of
Appeal in Collins
v Secretary of State for Communities
and
Local Government
[2013] EWCA Civ 1193 (AB Tab 15) approved Hickinbottom J's list
of
principles in Paragraph 69
of
his Judgment as an accurate and helpful summary. That list includes the proposition that "Whether the decision-maker has properly performed this exercise is a question
of
substance, not form". It follows that I reject Ground 4.
- I turn then to Ground 5 and whether the
Secretary of State
failed to explain why he concluded that the best interests
of
the Claimant's children should only be attributed modest weight. The thrust
of
Mr Willers' submissions was that the attribution
of
"modest weight" was plainly the starting point and does not reflect the position after an adjustment from the substantial weight to be afforded to the best interests
of
the child. Alternatively, he submitted there are no adequate reasons to explain why the downward adjustment has taken place. He submitted that the decision does not expressly
state
that the best interests
of
the child were given substantial weight at the outset, and gives no explanation as to how the adjustment was made to "modest".
- I am satisfied that "modest weight" was not the starting point, but rather the conclusion as to the weight to be given after carrying out the balancing exercise. That is clear from the context
of
the Inspector's report (B31) and the context
of
the
Secretary of State
's decision (B15-16, paragraphs 15 -17). Whilst I accept the
Secretary of State
does not expressly
state
that the starting point was to give the best interests
of
the children "substantial weight", he plainly treated them as a primary consideration. That is the correct test. The decision-maker does not have to go into fine detail as to exactly how the various factors have been balanced. It is matter
of
judgment and properly one
for
the decision-maker to make. Plainly he cannot simply ascribe weights to various aspects without any explanation as this would or might be wholly arbitrary. But that is not the position here. The decision maker has set out the relevant matters, making it clear he has taken them into account, and has then ascribed, as he is entitled to, the appropriate weight as a matter
of judgment. In my judgement Ground 5 is not made out.
- It follows that the Claimant's case fails on all Grounds and is dismissed.