Case No: C1/2010/2759
Neutral Citation Number: [2011] EWCA Civ 1556
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION 
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE KAY QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 16 November 2011

Before:

THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE AIKENS
and
LORD JUSTICE SULLIVAN

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Between:

	ROONEY
	
Appellant	
	- and -		
	
SECRETARY OF STATE FOR COMMUNITITES
AND LOCAL GOVERNMENT	

Respondents	

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(DAR Transcript of 
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Mr A Masters (instructed by Bramwell Browne Odedra Solicitors) appeared on behalf of the Appellant.

Mr R Wald (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment

LORD JUSTICE SULLIVAN:   

1.	This is the hearing of an adjourned application for permission to appeal, with the appeal to follow if permission is granted, against the order dated 26 October 2010 of HHJ Michael Kay QC, sitting as a Deputy Judge of the High Court, dismissing the applicant's application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), to quash a decision of an inspector appointed by the first defendant, the Secretary of State for Communities and Local Government, to dismiss the applicant's appeal under section 78 of the Act against the decision of the second defendant to refuse planning permission for a change of use on land at Willow Farm, Ottershaw in Surrey ("Willow Farm") for the stationing of caravans for four gypsy families, together with ancillary hardstanding.

2.	The inspector held a public inquiry into the appeal on 27 October 2009 and carried out a site visit on 29 October.  His decision letter is dated 30 October 2009.

3.	A little over a month earlier, the same inspector had allowed an appeal under section 78 against the refusal of the second defendant to grant planning permission for the change of use of land to the rear of Red Cottage, Lyne Road, Lyne, Virginia Water, Surrey ("Red Cottage") as a residential caravan site for six gypsy families, each with two caravans together with ancillary hardstanding.

4.	The inquiry into the Red Cottage appeal was held on 2 September 2009 and following a site visit on 3 September the inspector's decision letter granting planning permission, subject to a number of conditions, is dated 9 October 2009.

5.	Unsurprisingly, Mr Masters, who appeared on behalf of the appellants at both of the inquiries, placed much reliance before the inspector in the Willow Farm appeal upon his recent grant of planning permission in the Red Cottage appeal.  In effect, it was contended that the circumstances of the two appeals were not distinguishable in any material respect and the same considerations which had led the inspector to grant planning permission in the Red Cottage appeal should lead him to grant planning permission in the Willow Farm appeal.  The inspector dealt with that contention in paragraph 53 of the Willow Farm decision letter:

"I have taken into account all the various other decisions and judgments that were put forward.  I have also had particular regard to the recent planning appeal decision at Red Cottage that was referred to extensively at the Inquiry.  I consider that the circumstances of this case differ materially from the Red Cottage site.  There are significant and material differences concerning the impact on the Green Belt, the impact on both the character and appearance of the area, and in the personal circumstances of the respective appellants.  In both cases the decisions have been the result of a balance between the conflict with policy and the other material considerations.  In this case I conclude that the identified harm is not clearly outweighed by the other material considerations ..."
	
6.	As a matter of first impression, it might be thought that the issue as to whether there was any material difference between the circumstances of the two appeals was preeminently a matter of planning judgment for the inspector who had seen both sites on his site inspections.  Where is the error of law in the inspector's approach to the Willow Farm appeal?

7.	In both cases there were enforcement notices prohibiting the use of the land for the siting of caravans for residential use.  The planning applications were an attempt to regularise the use of the sites as gypsy caravan sites.  Both appeals, therefore, proceeded upon the basis that if planning permission was not to be granted, then eviction would follow. Both sites were in the Green Belt and there was no dispute that their use as gypsy caravan sites was inappropriate development in the Green Belt.  The inspector, therefore, had to consider in both appeals whether the harm by reason of inappropriateness in the Green Belt and any other harm was clearly outweighed by other material considerations.

8.	In the Red Cottage decision the Inspector said:

"35.  In this case there is the harm arising from inappropriateness to which I must attach substantial weight.  In addition there is some harm to the openness of the Green Belt and harm arising from the conflict with two of the purposes of including land within the Green Belt.  There is also limited harm to both the character and appearance of the area, although this harm is highly localised.  Taken together, however, this amounts to a considerable level of harm.

36.  Against this harm it is necessary to weigh the various other considerations advanced by the appellants.  In particular there is the significant need to additional Gypsy and Traveller sites.  This need is local, county-level and regional.  The GTAA and the bi-annual counts show that there is a significant difference between the level of site provision and the demand for sites.  They also show a considerable level of need within the wider area.  I attach considerable weight to this need.  It is not disputed that there are no suitable alternative sites in the area that are affordable and available; there is no evidence to suggest that any will become available until after the DPD has been adopted and acted upon.  This is likely to be at least 5 years.  In the meantime there is no 5-year supply of deliverable sites.

37.  I give great weight to the probability that a refusal of permission will result in the appellants having to leave the site and resort to roadside camping.  This would result in serious harm to their quality of life and, for one of the families, in one their ability to carry out their horse breeding business.  As most of the Borough is either urban, and thus not likely to be affordable, or in the Green Belt, roadside camping would be likely to be equally harmful to the Green Belt and potentially more harmful to the appearance of the countryside.

38.  I give only limited weight to the appellants' health needs, which are not serious.  I give a little weight to the education needs of Nicole Kefford and the other young children on the site as continuity of education is important and difficult to achieve from a roadside existence.  This weight is limited, however, as these education needs could be met elsewhere.  Other material considerations in the appellants' favour include the lack of any development plan policies against which any potential alternative sites that may become available can be assessed and the extent of the Green Belt.

39.  It is clear that until additional sites are identified in a DPD, there is no realistic prospect that an alternative site will become available for the appellants.  The alternative is a roadside existence.  Eviction from this site would be likely to result in loss of their home and result in a serious interference with their rights under Article 8 of the European Convention on Human Rights.  For the reasons given above I do not consider that this harm would be proportionate.  Subject to the imposition of conditions, I conclude that the harm by reason of inappropriateness, and the other identified harm, is clearly outweighed by the other considerations.  It is therefore necessary to determine whether very special circumstances exist that justify this inappropriate development."

9.	The inspector then considered in paragraph 40 of the decision letter whether very special circumstances existed so as to justify an appropriate development in the Green Belt and concluded that they did.

10.	In the Willow Farm decision letter, the inspector posed the same questions, but his answers to those questions were different.  When dealing with whether harm by reason of inappropriateness and any other harm was outweighed by other considerations, the inspector said:  
"46.  In this case there is harm arising from inappropriateness to which I must attach substantial weight.  In addition there is considerable harm to the openness of the Green Belt.  There is further harm arising from conflict with two of the purposes of including land with the Green Belt as identified in PPG2.  There is also substantial harm to both the character and appearance of the area.  Taken together this amounts to very severe harm.

47.  Against this harm it is necessary to weight the various other considerations advanced by the appellants.  In particular there is the significant need for additional Gypsy and Traveller sites.  This need is local, county-level and regional.  The GTAA and the bi-annual counts demonstrate that there is a significant difference between the level of site provision and the demand for sites in Runnymede and the wider area.  I attach considerable weight to this need.  It is not disputed that there are no suitable alternative sites in the area that are affordable and available; there is no evidence to suggest that any will become available until after the DPD has been adopted and acted upon.  This is likely to be at least 4 years.  In the meantime there is no 5-year supply of deliverable sites.

48.  I give weight to the probability that a refusal of permission will result in the appellant and the other site residents having to leave the site.  In the absence of alternatives it is possible that they would have to resort to roadside camping.  There is no detailed evidence as to the whereabouts of the other residents who have left the site over the years.  Any roadside camping would be likely to result in serious harm to their quality of life.  As most of the Borough is either urban, and thus not likely to be affordable, or in the Green Belt, roadside camping would be likely to cause some harm to the Green Belt.  It would also have the potential to be harmful to the appearance of the countryside.

49.  I give substantial weight to the health needs of one of the residents, Margaret Rooney, but only limited weight to the health needs of the other residents, which are not unusual or especially serious.  I give some weight to the education needs of the various children living on the site as continuity of education is important and difficult to achieve from a roadside existence.  This weight is limited, however, as these education needs could be met elsewhere.  Other material considerations in the appellants' favour include the lack of any development plan policies against which any potential alternative sites that may become available can be assessed and the extent of the Green Belt.

50.  As set out above, dismissal of this appeal is likely to mean that the appellant, her family and the other site occupiers would have to vacate this site.  This may result in unauthorised camping.  This would undoubtedly represent an interference with their rights under Article 8 of the European Convention on Human Rights (right to respect for private and family life).  However, this interference must be weighed against the wider public interest.  For the reasons given above, I have found that the proposals would be severely harmful to the Green Belt and to both the character and appearance of the area.  I do not consider that this harm can be overcome by the use of conditions or sufficiently lessened by granting a temporary planning permission.  I am satisfied that this legitimate aim can only be adequately safeguarded by the refusal of permission.  On balance I consider that the dismissal of this appeal would not have a disproportionate effect on the appellant, her family or the other site occupiers."

11.	In paragraph 51, the inspector considered whether very special circumstances existed and concluded that they did not:

"For the reasons set out above, my overall conclusions are that the material considerations advanced in support of the development do not clearly outweigh the substantial harm that would arise in terms of the effect upon the Green Belt and on the character and the appearance of the area.  I conclude, therefore, that the other material considerations do not amount to the very special circumstances necessary to justify the development."

12.	I have already set out paragraph 53 of the decision letter in the Willow Farm appeal in which the inspector distinguished between the two appeals.

13.	In his original grounds of appeal and in his supplemental skeleton argument dated 14 November 2011 on behalf of the claimant, Mr Masters submitted that the inspector's conclusion that the interference with the appellant's Article 8 rights in the Red Cottage case would not be proportionate should have led him to reach the same finding in the Willow Farm case.  In both appeals the appellant's gypsy status was agreed.  There was a significant need for additional gypsy and  traveller sites, there were no suitable sites in the area and no suitable sites were likely to become available until the Development Plan Documents ("DPD") had been adopted and acted upon, which would take some five years.  It followed that eviction would result in the appellants in both cases having to resort to roadside camping in all probability.

14.	The submission underlying this appeal that the conclusion as to proportionality in both cases should have been the same is based in my judgment upon a fundamental misconception, that is to say that in deciding whether the interference with the appellant's Article 8 rights was proportionate, the inspector was simply concerned with the possible impact of a refusal of planning permission upon the appellants, and was not entitled to consider the extent of planning harm which would result from a grant of planning permission.  As the inspector said in paragraph 50 of the Willow Farm decision letter:  the interference with the appellant's Article 8 rights had to be weighed against the wider public interest.  That is the position in any balancing exercise that has to be carried out under Article 8(2).  In simple terms, the greater the harm to the public interest, the less likely it is that the interference with the individual's Article 8 rights will be found to be disproportionate.

15.	 In the present case, the inspector explained why the very similar degree of interference that was disproportionate in the Red Cottage case was not disproportionate in the Willow Farm case.  In the latter case, the inspector had concluded that granting planning permission would be severely harmful to the Green Belt and to both the character and the appearance of the area: see paragraphs 46, 50 and 53 of the Willow Farm decision letter.  This can be contrasted with the inspector's conclusions as to the extent of the harm to the Green Belt if planning permission was to be granted in the Red Cottage case: see paragraph 35 of that decision letter.

16.	In summary, while there were of course some differences between the appellants’ personal circumstances in the two cases, the main difference was between "a considerable level of harm" in the Red Cottage case and "very severe harm" in the Willow Farm case.  In the latter case, the proportionality balancing exercise under Article 8(2) understandably came down in favour of refusing planning permission.  It seems to me that there was, therefore, no arguable error of law in the inspector's approach.  That would be a sufficient basis for disposing of this application for permission to appeal. However, on the renewed application for permission to appeal before Carnwath LJ, Mr Masters raised a further ground of appeal and it was that ground which persuaded Carnwath LJ to adjourn this application for permission to appeal because of the wider implications of the new point that Mr Masters had raised.

17.	By way of background, it is quite clear that HHJ Kay QC did not consider the issue of proportionality afresh for himself.  He adopted the conventional approach in applications under section 288 and appeals under section 289 of the 1990 Act; that is to say he considered whether there was an error of law in the inspector's approach to proportionality.

18.	Mr Master's new submission was that the judge had erred in restricting himself to a review of the lawfulness of the inspector's decision on proportionality.  The judge should, submitted Mr Masters, have carried out a merits review of that issue for himself.  For this somewhat surprising proposition, Mr Masters relied principally upon the dicta of Lord Neuberger in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104.  In paragraph 45 of his judgment, Lord Neuberger, omitting case citations, said:

"From these cases it is clear that the following propositions are now well established in the jurisprudence of the European Court:

(a) Any person at risk of being dispossessed of his home at the suit of the local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of Article 8, even if his right of occupation under domestic law has come to an end.

(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (ie, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues.

(c) where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if Article 8 has been complied with..."

19.	Mr Masters's core submission this morning was that in a situation where fundamental human rights are engaged, such as Article 8, the conventional approach under sections 288 and 289 is wrong and the court has to adopt a review based on what Mr Masters described as "Pinnock principles".  With due respect to Mr Masters's submission, this is wholly misconceived because it fails to take into account the differences between the two statutory schemes: the one under the Housing Act 1985 as amended by the Housing Act 1996 and the other under the 1990 Act.  In Pinnock the Supreme Court was concerned with a local authority's power to obtain an order for possession against a demoted tenant.  Section 143D(2) of the 1996 Act provided that:
 
"The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed."  [See paragraph 10 of Lord Neuberger's judgment.]

20.	The question was whether section 143D(2) could be read and given effect compatibly with the Article 8 rights of demoted tenants.  The Supreme Court concluded that it could, so that in appropriate circumstances the demoted tenant could raise an Article 8 argument before the County Court considering whether or not to make a possession order.  It is important to note that the application to the County Court would be the only occasion on which the proportionality of the order sought by the local authority against the demoted tenant could be considered by an independent court or tribunal.

21.	The position under the 1990 Act is quite different.  There is a right of appeal under section 78 against the local planning authority's decision to refuse planning permission which will result in the eviction.  On such an appeal the Secretary of State or more usually an inspector appointed by him will conduct a full merits appeal on all of the issues, including, if relevant, the issue of proportionality under Article 8. That was precisely what the inspector did in these two appeals.  He decided the issue of proportionality for himself, having regard to all relevant considerations including, most importantly, the wider public interest.

22.	In these circumstances, there is simply no need for a second merits review of the proportionality issue.  In any event, the High Court, which will not have seen the site and will not have heard detailed evidence, would not be in a position to conduct such a review.  Mr Masters submitted that in cases where the Secretary of State recovered jurisdiction, neither the Secretary of State nor his officials would see the site either.  However, those cases represent a very small fraction of the appeals that are determined under section 78 and in such cases the Secretary of State, unlike the court, will have the considerable expertise of the department in planning matters at his or her disposal.

23.	In these circumstances where an inspector has considered the merits of an appeal, the requirements of the European Convention on Human Rights are satisfied by a statutory scheme which provides for a challenge to the lawfulness of the inspector's decision on essentially judicial review grounds. Mr Masters submitted that the European Court of Human Rights had determined in Bryan v United Kingdom [1995] 21 EHRR 342 that planning inspectors were not independent. Thus he submitted an appeal before an inspector did not afford someone, who might be evicted from their home, the opportunity of having the proportionality of that interference with their Article 8 rights determined by an independent court or tribunal. However, this was precisely the issue that was considered in both the Bryan case and in the case of R (Alconbury Developments Ltd & Others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295.

24.	In  Alconbury  the House of Lords referred with approval to the judgment of the European Court of Human Rights in Bryan.  In the latter case, the European Court of Human Rights had concluded that, notwithstanding the lack of independence of the inspectorate, the fact that there was an appeal to the High Court on essentially judicial review grounds was sufficient to secure compliance with the Convention.  That is, indeed, a reflection of the point made in paragraph 45(c) of Lord Neuberger's summary of the position where he said: 

"45(c) where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if Article 8 has been complied with ..."
 
25.	In Alconbury Lord Slynn, having reviewed the relevant authorities including a number of decisions of the European Court of Human Rights, said this in paragraph 54:
 
"I accordingly hold that, in relation to the judicial review of the Secretary of State's decision in a called in application or a recovered appeal under the planning legislation and to a review of the decisions and orders under the other statutes concerned in the present appeals, there is in principle no violation of Article 6 of the European Convention on Human Rights as set out in Part 1 of Schedule 1 to the Human Rights Act 1998.  The scope of review is sufficient to comply with the standards set by the European Court of Human Rights.  That is my view even if proportionality and the review of material errors of fact are left out of that account:  they do, however, make the case even stronger.  It is open to the House to rule on that question of principle at this stage of the procedure in the various cases."

Pausing there, it will be noted that Alconbury was a called‑in application, a matter which would be decided by the Secretary of State and indeed a matter in which the Secretary of State had an interest in the outcome of the appeal.

26.	By contrast, the appeal in the present case is an entirely conventional section 78 appeal, where the appeal is from a decision of a local planning authority.  The inspector takes the decision for him or herself and in theory while there is of course a possibility, as noted in Bryan, of recovery by the Secretary of State, in practical terms there can be no doubt that the inspector is entirely independent of the local planning authority, as indeed is demonstrated by the outcome of the Red Cottage decision.

27.	In paragraph 122 of his judgment in Alconbury, Lord Hoffmann, having reviewed the relevant authorities, said this:

"My Lords, I conclude from this examination of the European cases on our planning law that, despite some understandable doubts on the part of some members of the Commission about the propriety of having the question of whether there has been a breach of planning control determined by anyone other than an independent and impartial tribunal, even this aspect of our planning system has survived scrutiny.  As for decision on questions of policy or expediency such as arise in these appeals, whether made by an inspector or the Secretary of State, there has never been a single voice in the Commission or the European Court to suggest that our provisions for judicial review are inadequate to satisfy Article 6."

Again, pausing there, it should be noted that the question whether or not there has been a breach of planning control is a purely factual question.  There is no element of planning policy involved.

28.	Mr Masters sought to draw a difference between what he described as "expediency issues" which would include matters of policy and what he described as "fundamental issues of proportionality under Article 8".  However, that distinction fails to acknowledge the underlying proposition, that is to say that any consideration of proportionality is a balancing exercise, balancing the public interest against the degree of interference with the individual's Article 8 rights.  Any assessment of the public interest is bound, in the planning context, to involve consideration of such matters as the degree of planning harm, the extent of conflict with planning policy and so on and so forth.  That is to say, precisely the kind of “policy or expediency” questions referred to by Lord Hoffmann.  In respect of such issues there has been complete unanimity in the European Court of Human Rights that the present system of having such matters determined by planning inspectors with a right of review on judicial review grounds to the High Court is convention compliant.  That, indeed, was the conclusion of the European Court of Human Rights in the Bryan case.

29.	Having noted the extent to which the High Court could review an inspector's decision on the planning merits and noted that it was essentially limited to judicial review grounds, the European Court of Human Rights said this in the final paragraph in paragraph 47 of its judgment:
 
"Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by Article 6(1).  It is also frequently a feature in systems of judicial control of administrative decisions found throughout the Council of Europe Member States.  Indeed, in the instant case the subject matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgment in the regulation of citizens' conduct in the sphere of Town and Country Planning."

30.	In my judgment, those observations are equally apposite to the appeal in the present case.  The short answer to Mr Masters's submission is that any perceived lack of independence in the inspectorate is remedied by a right of appeal on judicial review grounds to the High Court, which could of course examine any allegation that the inspector had acted in anything other than an entirely fair and impartial manner.  Once that position is established, the answer to Mr Masters's submission based upon Pinnock is that while the Convention does require the issue of proportionality to be determined by an independent tribunal where Article 8 is engaged, it most certainly does not require that the state should give the individual two bites at the cherry.

31.	By way of analogy, in the immigration field the issue of proportionality is considered by the First-Tier Tribunal from which there is an appeal on a point of law to the Upper Tribunal.  The position is the same under the 1990 Act with the substitution of the planning inspector for the First-Tier Tribunal and the High Court for the Upper Tribunal.

32.	For these reasons, I am satisfied that there is no substance whatsoever in this ground of challenge to the judge's approach to this section 288 appeal.  I would grant permission to appeal given the importance of the issue raised, but I would do so only in order to dismiss the appeal.

LORD JUSTICE AIKENS:   

33.	I agree.

THE PRESIDENT:  

34.	I entirely agree and cannot usefully add anything.

Order: Permission to appeal granted; appeal dismissed.