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Cite as: [2003] EWHC 886 (Admin)

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Neutral Citation Number: [2003] EWHC 886 (Admin)


Royal Courts of Justice
London WC2
26th March 2003

B e f o r e :

(Sitting as a Deputy High Court Judge)




Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)


MR TIMOTHY JONES (instructed by The Community Law Partnership, Corporation Street, Birmingham, N4 6RP) appeared on behalf of the CLAIMANT
MS NATHALIE LIEVEN appeared on behalf of the DEFENDANTS



Crown Copyright ©



  1. This is an application under section 287 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash the Bath and North East Somerset, Bristol, North Somerset, and South Gloucestershire Joint Replacement Structure Plan ("the Structure Plan"). The Structure Plan was adopted by the four defendants on 23rd September 2002. This application was made on 13th November 2002 within the statutory six week period. At the start of the hearing yesterday, the claimant sought to amend the claim form in accordance with a letter sent by her solicitors to the defendants on 14th November 2002. There was no objection to that application, and I granted permission to make the three amendments sought.
  2. The Factual Background

  3. The claimant is a gypsy within the statutory definition in section 24(8) of the Caravan Sites and Control of Development Act 1960. That definition refers in particular to persons having a nomadic lifestyle. She is also a Romany gypsy, a recognised ethnic group within the scope of the Race Relations Act 1976. The claimant lives in and resorts to the area of the Structure Plan. She lives with her daughter and grandchildren. At present she is living in the area of the third defendant.
  4. The present claim relates to the Structure Plan, which was introduced to replace the Avon Structure Plan, and covers approximately the same area as that of the former county of Avon, which was abolished and replaced by the four defendant authorities in 1996. The defendants are unitary authorities. In order to have a coordinated approach to the drafting of the replacement Structure Plan, the four defendants established a Joint Strategic Planning and Transportation Committee ("JSPTC" or "Joint Committee").
  5. I have before me a witness statement from Roger Daniels, who is the director of the JSPTC, and has been in that post and involved in the process of drafting the Structure Plan since September 1996. His witness statement begins in bundle A at page 94, and I will need to refer extensively to it. Mr Daniels notes at paragraph 3 that Policy 37, to which I will have to return in greater detail, evolved from Policy 33 of the Deposit Draft Structure Plan. This evolution followed objections to the Deposit Draft, an examination in public, the Panel's report, proposed modifications, objections to the proposed modifications, and further modifications, which responded to the Secretary of State's direction concerning total housing numbers. At paragraph 4 he states:
  6. "Policy 33 of the Deposit Draft was a combined policy for mobile homes and Gypsy sites. It was one of three policies (Policies 31 to 33) concerned with housing numbers and with qualitative aspects of housing including affordability and housing mix. It sought to address the needs of Gypsy and traveller sites and other mobile homes, as special kinds of housing need requiring special consideration ..."
  7. Policy 33, which he then sets out at paragraph 5 of his witness statement, stated as follows:
  8. "The location of sites for mobile homes will generally be subject to the same planning policies as other residential developments; requiring access to local services and facilities, especially for sites in long-term use, and reflecting local environmental considerations. A site for mobile homes is not appropriate in the Green Belt and may be unacceptable in some locations where permanent housing would be permitted."

    In a distinct subparagraph, Policy 33 continued as follows:

    "Sites to accommodate mobile homes for gypsies and travellers, which may involve special requirements, will be addressed in local plans."
  9. At paragraph 7 of his witness statement, Mr Daniels says this:
  10. "16 objections to this Policy 33 were received ...  Objectors included the Avon Travellers Support Group, the Romany Guild, the National Romani Rights Association, Bristol Socialist Environment And Resources Association ... who all called for a more positive and prescriptive policy for the provision of Gypsy sites in local plans ..."
  11. Policy 33 was then considered by the examination in public. Gypsy sites were included with Policy 32 under what was described as "Matter 15", as agreed by the Joint Committee on 22nd October 1998. As Mr Daniels says at paragraph 9 of his witness statement, when Matter 15 was discussed at the examination in public on the morning of 19th March 1999, participants included a representative of the National Romani Rights Association. There is before the court evidence which was given to the Panel on behalf of the defendants, in particular as to the history of seeking to identify gypsy sites in each of their areas. That is in the defendants' bundle of factual materials at page 54, and I will refer to examples of what was said in that evidence in order to give a flavour of the position at that time. What the North Somerset Council (the fourth defendant) said to the inspector, as recorded at the top of page 54, was:
  12. "In relation to gypsy policy, we do have a criteria policy in our local plan and in North Somerset we have, if the right word is deliver, we have delivered gypsy sites, we have granted planning permission for gypsy sites. There may be an argument about whether the need is fully met but it's a criteria based approach, applications have been judged on the basis of need and planning permission has been granted so I can't agree with the statements that have been made across the table in North Somerset's case."
  13. South Gloucestershire, which is the third defendant, on the same page is recorded as saying:
  14. "Turning to policy 33 and particularly on the policy aspect [for] the provision for gypsy sites, South Gloucestershire does have two managed authorised sites at Winterbourne and Patchway providing accommodation for 32 families. There are also in addition a number of smaller privately owned sites throughout South Gloucestershire. The Council would readily conceive [I think that should read 'concede'] that on assessment of the Department of Transport, Environment to the regions [I think, again, that should read 'and the Regions'] by annual gypsy counts and its own weekly counts of unauthorised [then there appears a blank in the record, but I think that must be 'sites'] that there is a very strong case to say that need has not been met within South Gloucestershire."
  15. The report of the Panel after the examination in public dealt with the issue of Policy 33 at paragraphs 3.61 to 3.63, which is before the court in the defendants' factual bundle at pages 61 to 62. I will quote those paragraphs:
  16. "3.61. The second part of Policy 33 states that sites to accommodate mobile homes for gypsies and travellers, which may involve special requirements, will be addressed in Local Plans. The first part concerns mobile homes in general and it makes clear that these would not be appropriate in the Green Belt. The objectors to this policy contrast it with policy H.12 of the current Avon County Structure Plan (1994) which states that provision will be made by the County or District Councils, or by private provision, for about 100 additional caravan pitches on permanent and transit sites to be located in both the urban and rural areas of the County, and in addition that emergency stopping places to meet the needs of travellers or gypsies will be provided. It has also been brought to our attention that no sites for travellers or gypsies have been provided in Bristol after 20 years of seeking, and that there has been a 100% refusal rate of gypsy site applications by South Gloucestershire Council and its predecessor authority, despite the very great pressure in the Plan area for accommodation for gypsies and travellers.
    "3.62. The Panel appreciate that since the 1994 Structure Plan the statutory duty of local authorities to provide sites for gypsies has been repealed. The advice in Circular 1/94 anticipated this change and it encourages gypsies and travellers to provide accommodation for themselves. In general, the existing and emerging Local Plans for the Plan area are compatible with this advice so far as they set out criterion-based policies against which planning applications are judged. However, it is abundantly clear that this approach is failing to meet the housing needs of this group within the community.
    "3.63. We are strongly of the view that the Plan must seek to do more to guide and assist the Unitary Councils in fulfilling their obligations to all sections of the community. Therefore the Plan should set out a broad strategy which will ensure that local planning authorities assist gypsies to find suitable sites in accordance with their needs. This issue should not be treated as an adjunct to a general policy about mobile homes but should have separate policy status. We do not consider that it would be appropriate to set a numerical target for site provision at structure plan level, but we would expect that in monitoring the Plan, the JSPTU will work closely with the Unitary Councils to quantify the need for sites within the area and to review the planning and other measures which may be required to achieve an appropriate level of provision ..." (my emphasis)
  17. The report of the Panel then proceeded to make a recommendation in relation to Policy 33, which was R21. That recommendation, R21, read as follows:
  18. "Policy 33 should be modified by the deletion of the reference to sites for gypsies and travellers. A separate policy should be inserted in the Plan which requires that suitable locations for gypsy and traveller sites will be identified in Local Plans, that the provision of sites will be encouraged in accordance with local assessments of need, and that sites should be located close to services and facilities including schools, readily accessible from main roads, and wherever possible should be suitable for mixed residential and business uses in accordance with gypsies and travellers' needs." (my emphasis)
  19. The chronology in relation to the development of the drafting of the Structure Plan can then be taken up from Mr Daniels' witness statement at paragraphs 10 and following, where he says:
  20. "10. The Panel did not, however, recommend a form of words for the modified policy (as it had done, for example, in Recommendation R18 for Policy 31).
    "11. The Joint Committee considered the Panel's report initially at its meeting on 27th July 1999. In relation to Recommendation R21, the Committee resolved to 'reserve judgment for further consideration by officers' rather than agree in principle the Panel's recommendation immediately.
    "12. At its meeting on 14th October 1999, the Joint Committee agreed decisions and reasons in relation to the Panel's report as the basis for Proposed Modifications that were published on 5th November ... For Recommendation R21, their decision was to agree a new Policy 37 (separate from the new Policy 36 on mobile homes):
    'Local plans will set out policies to secure an appropriate level of site provision for gypsies and travellers within their area, including the provision of temporary stopping places to reduce unauthorised encampments.
    Permanent sites should be located within a reasonable distance of local services and facilities, outside existing settlements or on the edge of built-up areas if more appropriate, avoiding the encroachment of open countryside and minimising noise, visual impact and disturbance.
    Sites should not normally be located within the Green Belt, on areas of open land subject to special policies on conservation and/or restriction of development, or on the best and most versatile agricultural land.
    Mixed use sites will be considered where appropriate incorporating provision for residential and small scale light business use undertaken by gypsies and travellers.
    The monitoring of the provision of facilities by Local Authorities will be coordinated in order to ensure that provision reflects the level and changing pattern of need.'
    "13. The Committee's reasons for proposing this modification were:
    'The proposed addition of a new policy on gypsy and traveller sites follows the approach recommended by the Panel (R21). The new policy is based on guidance to LPAs contained in Circular 1/94 and a DETR/Home Office document "Managing Unauthorised Camping - a good Practice Guide" (October 1998).'"
  21. At paragraph 14 of his witness statement, Mr Daniels refers to objections which were received to the new Policy 37, and continues as follows:
  22. "All these objections were considered by the Joint Committee on 3rd February 2000 ... when a change in Policy 37 was agreed ... [I do not feel the need to quote from the changed wording of Policy 37, save to note that there was a change in the second subparagraph of it which begins 'permanent sites']."
  23. At paragraph 16, Mr Daniels continues:
  24. "On 3rd February 2000, the Joint Committee resolved to adopt the plan without further modification. Some revisions, including that of Policy 37 were considered as clarifications, either in response to objections or for other reasons, rather than substantial modifications requiring further deposit. Adoption was delayed by a holding direction preventing adoption, received from the Secretary of State on 17th March ... followed by a substantive direction requiring changes to the housing numbers in Policy 33, issued on 27th July ..."
  25. Paragraph 17 of his witness statement reads as follows:
  26. "Further Modifications to the JRSP were published on 14 December 2001. The reason for this lapse of time was that responding to the Secretary of State's direction required undertaking co-ordinated urban housing capacity studies and agreement by the Joint Committee and its constituent authorities to amended housing figures (Policy 33). The Secretary of State indicated in February 2002 that he was 'minded to lift' the direction in response to the Further Modifications."
  27. Paragraph 18 of Mr Daniels' witness statement reads as follows:
  28. "The Joint Committee resolved to recommend adoption of the plan by its four constituent councils, without further modification, on 7th March 2002. The four councils agreed, between May and July 2002, to adopt the plan. The Secretary of State's direction was withdrawn on 14th August and the plan was formally adopted on 23rd September, following the publication of notices of intention to adopt on behalf of the four councils."
  29. I will have to return to Mr Daniels' witness statement in due course, but that will suffice for present purposes to recite the factual history of the process by which the Structure Plan was adopted.
  30. Material Legislation

  31. Section 287 of the 1990 Act, so far as material, provides as follows:
  32. "(1) If any person aggrieved by a unitary development plan or a local plan ... or by any alteration, or replacement of any such plan or structure plan, desires to question the validity of the plan or, as the case may be, the alteration, or replacement on the ground-
    (a) that it is not within the powers conferred by Part II, or
    (b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan, or, as the case may be, its alteration, or replacement,
    he may make an application to the High Court under this section.
    "(2) On any application under this section the High Court ... 
    (b) if satisfied that the plan, or, as the case may be, the alteration, or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration, or replacement either generally or in so far as it affects any property of the applicant." (my emphasis)
  33. The claimant alleges in this court that there has been a breach of a procedural requirement imposed by regulations made under the 1990 Act, and that she has been substantially prejudiced thereby. The relevant procedural requirement is contained in the Town and Country Planning (Development Plan) (England) Regulations 1999 (SI 1999/3280). Regulation 15 of those regulations, so far as material, provides as follows:
  34. "4. Where the report of the person holding the examination in public contains recommendations that the proposals should be modified in a manner specified in the report and the local planning authority intend not to accept one or more of those recommendations:
    (a) the authority shall make a list of recommendations that they do not intend to accept available for inspection from the date on which, and at the places at which, the report is made available for inspection;
    (b) the notice given in Form 3, or in Form 4, as the case may be, shall record the authority's intention not to accept those recommendations and invite objections and representations to be made in respect of that intention within six weeks of the date on which the notice is first published in a local newspaper ... [I do not need to cite the remaining parts of the paragraph which concern further consequential procedural requirements]."(my emphasis)
  35. It is common ground that a local planning authority is not bound by recommendations by the Panel. But Mr Jones submits that if it is to depart from a recommendation, it must follow the procedure in regulation 15(4) and give reasons for its departure from the recommendation, not least because that enables an interested person to scrutinise those reasons and, if appropriate, to challenge them in a court of law.
  36. Material Provisions of National Policy

  37. Circular 1/94, to which I have already made reference, is headed "Gypsy Sites and Planning" and is to be found in the defendants' factual materials bundle at page 18. I will quote material parts of it. Paragraph 1 states:
  38. "This Circular revises guidance on the planning aspects of sites for caravans which provide accommodation for gypsies. It applies equally to local authorities' own sites and to applications for planning permission from gypsies themselves or from others wishing to develop land for use as a gypsy caravan site. The Circular comes into effect immediately ..."
  39. Paragraph 6 of the circular begins as follows:
  40. "Gypsies make up a tiny proportion of the population of England and Wales, but their land-use requirements need to be met ..."
  41. Paragraph 9 of the circular reads as follows:
  42. "After the proposed repeal of this duty [a reference to the repeal of the duty under the 1968 Act to make adequate provision for gypsies which was imposed on local authorities], local planning authorities should continue to indicate the regard they have had to meeting gypsies' accommodation needs. Repeal of the statutory duty will make it all the more important that local planning authorities make adequate gypsy site provision in their development plans, through appropriate use of locational and/or criteria-based policies. Structure plans and Part I unitary development plans should continue to set out broad strategic policies, and provide a general framework for site provision. Local plans and Part II of unitary development plans should continue to provide detailed policies." (my emphasis)
  43. Paragraph 12 of the circular reads as follows:
  44. "Local plans and Part II unitary development plans should wherever possible identify locations suitable for gypsy sites, whether local authority or private sites. Where this is not possible, they should set out clear, realistic criteria for suitable locations, as a basis for site provision policies. They should also identify existing sites which have planning permission, whether occupied or not, and should make a quantitative assessment of the amount of accommodation required. A tradition of sites occupied by gypsies and the demonstration of a local need will help authorities to make proposals for sites in suitable locations." (my emphasis)

    A similar statement to paragraph 12 of the circular is to be found in paragraph 4.14 of PPG12, which is concerned with development plans.


  45. Having considered the parties' written and oral submissions, it appears to me that three principal issues arise in this case: (1) Did the defendants breach regulation 15(4)? (2) If so, does it follow that the entire Structure Plan should be quashed? (3) If not, should Policy 37 be quashed?
  46. The First Issue

  47. This issue in turn depends on whether the defendants committed an error of law in their interpretation of the Panel's recommendation R21. If they did not, it would follow that the procedural obligations in regulation 15(4) never applied, and so there was no breach of that regulation.
  48. Mr Jones submitted that the defendants did misinterpret R21. The thrust of his argument was that it was clear that R21 recommended identification of sites for gypsies in the local plans, not merely the laying down of criteria by which sites could be identified later. He referred to the former technique as identifying through locational means, and the latter technique as identifying through criteria-based policies. He submitted that R21 was unambiguous on its face, but that if there were any ambiguity, it was legitimate to have regard to the context, in particular the Panel's reasons at paragraphs 3.61 to 3.63 of their report, which I have cited already.
  49. This approach to interpretation was not disputed by Ms Lieven, who appeared for the defendants, and I agree with it. In interpreting documents, the court should always have regard to the context. However, Ms Lieven submitted that the proper approach to the interpretation of a recommendation in a Panel report is not to construe it like a statute. Further, she submitted that an analogy can be drawn with the decision of the Court of Appeal in R v Derbyshire County Council, ex parte Woods [1997] JPL 998, in which it was held that the construction of a planning policy is a matter for the relevant planning authority, provided that its interpretation is reasonably open to that authority, even if the court might have reached a different interpretation itself.
  50. In an important concession made in his reply, Mr Jones accepted that that is the correct approach for the court to take. I agree with Ms Lieven's submission, and with Mr Jones' concession. Applying that approach, I have come to the conclusion that it was reasonably open to the defendants to interpret R21 as they did. See paragraph 21 of Mr Daniels' witness statement, where he says:
  51. "R21 of the Panel's recommendations did not say how locations for Gypsy and traveller sites should be identified in the Local Plans. The Joint Committee took the view that the best way to identify locations for sites was through the mechanism of Policy 37, which allowed the use of locational criteria or site identification, depending on local circumstances."
  52. My reasons for reaching that conclusion are as follows:
  53. (1) R21 was, essentially, a statement of desirable planning policy, not a statement written by lawyers for lawyers. In this context I am reminded of the well-known statement made in another context that the "austerity of tabulated legalism" is to be avoided: see S A De Smith, The New Commonwealth and its Constitutions (1964) page 194 and Minister of Home Affairs v Fisher [1980] AC 319 at 328H (Lord Wilberforce). (I am grateful to Paul Rishworth for providing the reference to the book by Professor De Smith). It seems to me that Mr Jones' submissions, which advocated careful dissection and parsing of R21 into clauses and subclauses, invited me to fall into the temptation to treat a recommendation such as this with the austerity of tabulated legalism.

    (2) Although the phrase "identified in Local Plans" in the first part of R21 by itself might appear to refer to site specific allocations only, the remainder of R21 clearly envisages some criteria-based policies in local plans as well.

    (3) R21 should be understood in its context, as both sides accept, including the factual history. What the Panel was responding to was principally to recommend alteration to the wording of the draft Policy 33, not least because the reference to gypsy sites was very much an add-on at the back of a policy which was otherwise to do with mobile homes generally. Its focus was not on the suggested distinction between locational and criteria-based policies.

    (4) Policy 37, as finally formulated, does not require criteria-based policies only. It simply enables the defendants to have a choice as between site specific allocations and criteria-based policies, or both.

    (5) Such an approach is consistent with national policy, in particular paragraphs 9 and 12 of Circular 1/94, which I have already cited. Although national policy is not binding on local planning authorities, it is a material consideration, and if the Panel had intended to recommend departure from it, they could, and would, have said so in terms.

    (6) It is in the expert view of the Joint Committee, as reflected in Mr Daniels' witness statement before this court, undesirable that an excessively rigid approach should be adopted, no matter what their different circumstances, particularly because the Structure Plan is to cover four different local planning authority areas. The evidence is that each area has a different level of demand for gypsy sites, and there has been a different experience in meeting the needs of gypsies through attempts to find specific sites. There has been different experience in relation to whether it has been possible to grant applications for planning permission (see the evidence to the Panel by the third and fourth defendants which I have already cited by way of example above).

  54. At this point it seems to me to be appropriate to refer again to Mr Daniels' witness statement, first at paragraph 22, where he says:
  55. "There are significant differences between the four council areas that make up the joint structure plan, in terms of the needs of and provision for gypsies ... and the physical opportunities and constraints of each area for sites ... In these widely varying circumstances, the Joint Committee considered that a policy based on a single approach to be used in all four council areas would be unlikely to succeed in delivering appropriate provision."
  56. It appears to me that the objective that all concerned had at the material time was, indeed, to strive to succeed in delivering appropriate provision for gypsy sites, and it appears to me appropriate to bear in mind the context which Mr Daniels describes. At paragraph 27, Mr Daniels describes the different experiences, in particular as to demand in each of the four defendants' areas, and he continues with that description over the ensuing paragraphs. At paragraph 31 he notes this:
  57. "South Gloucestershire Council in its Local Plan (Revised Deposit, July 2002 ...) states:
    'The Council recognises that on the basis of this information, the need for accommodation of Gypsies for settled occupation within South Gloucestershire has not been met and no transit or emergency provision has been made either. However, despite extensive searching, the Council has, to date, been unable to identify further sites to meet this need. In lieu of any specific proposals therefore, Policy H11 sets out the criteria against which applications for Gypsy caravan sites will be judged.'" (my emphasis)

    Still in paragraph 31, Mr Daniels continues:

    "The South Gloucestershire Local Plan Policy (H11) is criteria based ..."
  58. The relevance of that evidence before the court is not that it was in being at the time that R21 was written, but rather as providing helpful background to the history which is part of the context within which, it was common ground R21 is properly to be construed. It is unlikely, in my view, that the Panel would have intended to recommend that there should be a rigid approach requiring identification on a site specific basis in the local plans, where experience in at least one of the defendant's areas was that they had simply been unable to identify further sites to meet need.
  59. My conclusion as to the interpretation which it was reasonably open to the defendants to reach in relation to R21 is also supported by the fact that what regulation 15(4) focuses on, as I have emphasised in the quotations from it above, is the "intention" of the relevant planning authority. Intention is usually regarded in law as a subjective concept. It is difficult to see how the defendants could be said to have intended to depart from R21 when they considered that they were not doing so, unless their subjective view was irrational. But for the reasons I have already given, I do not consider that their subjective view was irrational. Accordingly, in my judgment, the procedural obligations imposed by regulation 15(4) have not been breached in this case.
  60. In the light of that conclusion on the first issue, it is strictly unnecessary to address the other issues. However, I heard full argument on them, and I will briefly deal with them in case I am wrong on the first issue.
  61. The Second Issue

  62. Even if I had concluded that there had been a breach of regulation 15(4), I would not have quashed the Structure Plan as a whole. My reasons are as follows:
  63. (1) Section 287(2)(b) of the 1990 Act is clear in its terms and confers power on the court to quash a plan, either wholly or in part.

    (2) Policy 37 can be severed from the rest of the plan not only as a matter of language, but also as a matter of substance. It is not only textual severance, but the test of substantial severance which is important: see R v Director of Public Prosecutions, ex parte Hutchinson [1990] 2 AC 783.

    (3) The only reason, as I understood the argument, why Mr Jones submitted that the whole plan was "infected" by any legal defect in Policy 37 was a suggested knock-on effect on Green Belt policies. But I was not shown any such policies, nor why they could not stand, nor indeed why the rest of the plan could not stand generally as a sensible and coherent document if Policy 37 were to be severed. As Ms Lieven pointed out, Mr Jones' real complaint is directed to what Green Belt policies, including possible alteration of Green Belt boundaries, may find their way into the four local plans which are in the process of preparation, rather than Green Belt policies in the Structure Plan itself.

    (4) It is common ground that the use of the word "may" in section 287(2)(b) of the 1990 Act confers a discretion on the court whether or not to quash a plan at all. In my view, it would not have been just or appropriate to quash the entire plan simply because a procedural defect had occurred in the adoption of Policy 37. This is not to belittle the importance of procedural requirements. Indeed, the court is astute to ensure that procedural fairness is complied with, not least because it will not usually interfere with the outcome of fair procedures unless the resulting decision is irrational. However, a sense of proportion has to be kept when weighing in the balance on the one hand a failure to comply with regulation 15(4) in relation to one specific policy, and on the other hand all the public time and resources which have gone into the adoption of the Structure Plan over a period of six years, from 1996 to 2002. It was common ground before me that the effect of an order quashing the plan under section 287 would be to take things back, not to the Panel report stage, but to what has been called the "inception" of the plan: see South Northamptonshire District Council v Charles Church Developments Ltd [2002] PLCR 46, a decision of Hidden J.

    The Third Issue

  64. I can deal with this issue briefly. If I had concluded that there had been a breach of regulation 15(4), I would have exercised my discretion to quash Policy 37. It seems to me that a quashing order will normally be made if a procedural requirement has been breached, and the claimant has been substantially prejudiced. No authority to the contrary was cited. It was not suggested to me that, if there had been a breach of regulation 15(4), the claimant in this case was not substantially prejudiced. Although, even then, I accept that the court retains a discretion not to quash the relevant part of a plan, it seems to me that in the circumstances of this case, the just outcome would have been to quash Policy 37, in the expectation that it would be reconsidered in accordance with a lawful procedure. In my judgment, this would not have caused great inconvenience to the defendants, and certainly their evidence did not seek to persuade me that it would; and it would have vindicated the rule of law.
  65. Subsidiary Issues

  66. In his skeleton argument, Mr Jones advanced an argument based on natural justice. However, in oral argument he accepted that the rules of natural justice added nothing in the present case to the express procedural requirements of regulation 15(4). Accordingly, I need say no more about that argument.
  67. Also in his skeleton argument, Mr Jones alluded to suggested breaches of the Race Relations Act 1976, as amended, and the Human Rights Act 1998. Although these were developed a little more in oral submission, Mr Jones said that they went to the question of the appropriate remedy. Since I have found that there was no breach of regulation 15(4) in the first place, and since I did not hear full argument from the parties, in particular by Ms Lieven for the defendants, it seems inappropriate to me to pronounce on arguments which are potentially very far reaching in relation to the Race Relations Act and the Human Rights Act. Since it is not necessary to do so in this case, I will not embark on that exercise.
  68. Conclusion

  69. For the reasons I have given, this application is refused.
  70. MR JONES: My Lord, I apply for leave to appeal. I dealt with the matters of law in my submissions, and there is nothing I can add to that. I can deal with the importance of the issue, if it helps. Your Lordship heard in the submission of breaches of law, initially in the form of section 6 of the Caravan Sites Act 1968, and subsequently a policy in the form of Circular 1/94 by the defendants and their predecessors. The severe consequences of this, for a most underprivileged minority, are perhaps obvious, but they include denial of education, poor health, the highest infant mortality of any minority group in the country, the lowest life expectancy of any minority group in the country, and the highest morbidity rate of any minority group in the country. The practical consequences of your Lordship's judgment, if it turns out  practical consequences in any event, my Lord, are that matters will continue just as before. There will be no change whatsoever, and we see that from the emerging policies in the local plan and, in at least one case, the wrongful suffering of this minority will, it is anticipated by the defendant, continue for decades. My Lord, it is, therefore, a most important issue and, in my submission, it is appropriate for the issues of law to be heard by the Court of Appeal.
  71. Certainly, in 1993 the Minister for Planning indicated the predecessor of this authority was a particularly bad offender, and perhaps came close to saying it was the worst in the country. Of course, time has passed, and we do not have comparative figures before you as to the situation with other authorities today. But you have heard evidence which indicates that things have not got better in Avon since then. So, in broad terms there is not much difference. For those reasons, I would submit it is appropriate for the matter of law to go to the Court of Appeal.
  72. THE DEPUTY JUDGE: Thank you. Miss Lieven?
  73. MS LIEVEN: My Lord, I was hesitating (inaudible) I should make clear. As I understand it, my learned friend's client is legally aided, and in those circumstances I am instructed not to apply for the costs.
  74. THE DEPUTY JUDGE: So, if we just deal with costs first. I am assuming for the moment there is a certificate on the court file?
  75. MR JONES: I assume it is on the court file.
  76. THE DEPUTY JUDGE: If not, you can give the usual undertaking to file it within seven days.
  77. MR JONES: It must be filed, and I can give that undertaking.
  78. THE DEPUTY JUDGE: Within seven days. Subject to that procedural step just being checked, I will make no order as to costs, save for public funding assessment.
  79. MR JONES: I am grateful.
  80. THE DEPUTY JUDGE: Now, in relation to permission to appeal.
  81. MS LIEVEN: My Lord, on the two tests, first of all as to whether or not there is a reasonable chance of success --
  82. THE DEPUTY JUDGE: A real prospect of success.
  83. MS LIEVEN: I am not seeking to quote my Lord, I am sorry. Your Lordship found against the claimant entirely on the basis of what was a reasonable interpretation of R21. Now, my Lord, in my submission there is no real prospect of the Court of Appeal coming to a different interpretation. Your Lordship has set out the basis for it, and once one accepts that it is a question of reasonable interpretation, which, in my submission, it must be, then there is no reasonable prospect for the Court of Appeal to take a different view.
  84. In terms of whether there is a point of general importance -- again, I do not seek to paraphrase the White Book, but the general principle of the second limb. My Lord, the case turns entirely on its particular fact, because it turns entirely on the interpretation of the words in R21 and the reasons behind them. It has no impact on any (inaudible) and as far as the points my learned friend makes about the general importance to his client and to other gypsies in what was the Avon area, my Lord, as I said in submissions yesterday, all the points that are raised before your Lordship as to the merits and as to the allegation in some report that my clients were bad offenders in the past, those are all points that can be taken through the local plan process, and all local plan enquiries. And indeed, in my submission, that is the appropriate point to take them, because it is the local plan process where Green Belt land was, in fact, the principal thrust of my learned friend's client's arguments (inaudible) can be amended. Those points of wider significance are not really appropriate ones for the Court of Appeal at all, and really can be put on merits through the planning process. So, my Lord, in my submission, neither test is met here.
  85. THE DEPUTY JUDGE: Do you want to say anything more, Mr Jones?
  86. MR JONES: Only briefly on that last point. My Lord, underlying that is an assumption that gypsies have the resources of the House Builders Federation and the (inaudible) industry, and can put their case before local plan enquires. The majority of gypsies are still illiterate, and are (inaudible) in a position to have no public funding. They are just not in the same position as organised, well-funded bodies who have.
  87. THE DEPUTY JUDGE: Thank you.
  88. MS LIEVEN: My Lord, can I just make a very brief point? I do not wish in the slightest to sound unsympathetic, but it is plainly standard for gypsies to be represented at enquires and local planning enquires through various interest groups. I am not suggesting that Mrs Butler should necessarily turn up herself.
  89. THE DEPUTY JUDGE: I will refuse permission to appeal in this case. My reasons are briefly that firstly in relation to regulation 15(4), I have reached a clear view. I consider that there is no real prospect of success in an appeal on a point of law. I may be wrong about that, but the Court of Appeal will grant permission if that is so.  Secondly, in any event I would have refused to quash the plan in its entirety as matter of my discretion, and no one has sought to persuade me, nor do I think, that there would be any arguable error of law in the exercise of discretion. Thirdly, so far as the more general importance of the case is concerned, I accept Ms Lieven's submission that this case has entirely turned on the particular facts, and in my view, at least, it does not raise issues of a more general importance. But again, if I am wrong about that, then, of course, the claimant may be able to persuade the Court of Appeal to grant permission to appeal. Thank you both very much.

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