England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE FOSKETT)

		Royal Courts of Justice Strand London WC2A 2LL
		16 July 2013

Lord Justice Lewison:

1. Mrs Kathleen Murphy is an Irish traveler, who lives in a caravan on a site just south of Princes Risborough in Buckinghamshire. The site is both in the metropolitan Green Belt and also within the Chilterns Area of Outstanding Natural Beauty (AONB). The site was originally agricultural land, but it was developed as a site for the stationing of caravans for nine gypsy pitches, with utility and day room buildings and ancillary hard standing. The development was begun without planning permission.
2. On 1 May 2009 the site owner, Mr Patrick Hanrahan, applied to Wycombe District Council ("the Council") for planning permission seeking a change of use. On 2 September 2009 the Council served an enforcement notice alleging that without planning permission there had been a material change of use of the land to use as a gypsy and traveller caravan site, with associated enabling development including the erection of fences and the laying of hard surfaces to facilitate that use.
3. On 13 November 2009 the Council refused the application for planning permission. Mr Hanrahan appealed against both the refusal of planning permission and also the enforcement notice, the essential ground of appeal in each case being that planning permission ought to be granted. There were therefore two appeals proceeding in parallel.
4. An Inspector appointed by the Secretary of State held a public local inquiry on 13-16 July 2010 and 16 August 2010. At the time of the inquiry, it was assumed that the Inspector would decide whether to allow or dismiss the appeals. However, on 22 December 2010, the Secretary of State exercised his power under Schedule 6, paragraph 3, of the Town and Country Planning Act 1990, to direct that he himself should decide the appeals, a process known as "recovering" an appeal. Thus the Inspector's function became advisory only.
5. In a report dated 5 October 2010 he recommended the dismissal of both appeals. In a decision letter dated 9 December, the Secretary of State accepted the Inspector's recommendation and dismissed both appeals.
6. While Mr Hanrahan's appeal was going through the system, changes in policy were taking place at high level in central government. At the time when the appeal was launched, planning guidance for gypsy and traveller sites was set out in ODPM Circular 01/2006: Planning for Gypsy and Traveller Caravan Sites, issued on 2 February 2006. The planning process contemplated in the 2006 circular involved effectively three stages, though each were interlinked. The first involved local authorities undertaking an assessment of gypsy and traveller accommodation needs as part of what was described as the gypsy and traveller accommodation assessment process (GTAA). The purpose of this part of the process was to identify pitch requirements for each local authority area. That process was intended to inform the preparation of development plan documents. The next stage in the process was the consideration of the GTAA by the Regional Planning Board (RPB) in order to check or notify the pitch numbers arising from GTAAs from a regional perspective. The RPB was responsible for producing or, where appropriate, advising a regional spatial strategy (RSS), which then identified the number of pitches required but not their location for each local planning authority in the light of the GTAAs and a strategic view of needs across the region.
7. The number of pitches set out in the RSS was then translated into specific site allocations in one of the local planning authority's DPDs that form part of the local development framework. The DPDs were then subject to an examination in public. However, on 20 May 2010 the Government stated that it would rapidly abolish RSS's and return decision-making powers on housing and planning to local councils. On 27 May the Secretary of State wrote a letter to all planning authorities in which he said:

1. "I am writing to you today to highlight our commitment in the coalition agreements where we very clearly set out our intention to rapidly abolish Regional Strategies and return decision making powers on housing and planning to local councils. Consequently, decisions on housing supply (including the provision of travellers sites) will rest with Local Planning Authorities without the framework of regional numbers and plans.

2. I will make a formal announcement on this matter soon. However, I expect Local Planning Authorities and the Planning Inspectorate to have regard to this letter as a material planning consideration in any decisions they are currently taking."

8. On 6 July 2010 the Secretary of State made a statement in Parliament purporting to revoke RSS's immediately. That was the position when the inquiry took place before the Inspector in the present case. However, the Secretary of State's announcement led to litigation. In Cala Homes (South) Ltd v SSCLG [2010] EWHC 2866 (Admin) (Cala No 1), decided on 10 November 2010, Sales J quashed the purported revocation. Thus the regional strategy was formally reinstated. That was the position at the date of the Secretary of State's decision letter. In a subsequent round of litigation, this court held in Cala Homes (South) Limited v SSCLG [2011] EWCA Civ 639 (Cala No 2) that the Secretary of State was entitled to say that the intention to abolish RSS's in the Localism Bill should be treated as a material consideration in planning decisions.
9. The judgment of the Court of Appeal was handed down in May 2011, many months after the Secretary of State's decision in the present case. In the meantime, on 29 August 2010, the Secretary of State had announced the Government's intention to withdraw the existing planning guidance for gypsy and traveller sites and travelling showpeople, set out in Circular 01/2006 and 04/2007 respectively, and to replace it with what was described as a single slimmed down light touch planning policy statement (PPS) for traveller sites as part of the intended planning reforms.
10. In his decision letter in the present case, the Secretary of State said.

1. "6. Regional Strategies, including the South East Plan, had been revoked by the Secretary of State on 6 July 2010, and so the Inspector did not consider that Plan at the Inquiry …., following the decision in the Courts on 10 November 2010 [in Cala No. 1] the South East Plan has been reinstated, and is therefore part of the development plan. Notwithstanding this, the Secretary of State has clearly stated his intention to revoke all the Regional Strategies, including the South East Plan; and has stated that the revocation will be enacted by way of the Localism Bill. The Secretary of State has taken these matters into account in determining this appeal, but does not consider it necessary to refer back to the parties before reaching his decision. This is because, as the partial review of the South East Plan to address the regional need for gypsy and traveller caravan sites remains incomplete, policy H7 (requiring provision to be made in Local Development Documents) does not form a part of the Development Plan.

2. 7. The Secretary of State has taken account of ODPM Circular 01/2006 … as a material consideration in his determination of these cases. In reaching his decisions, he has also taken account of his announcement on 29 August 2010 of his intention to revoke it as he considers it to be flawed; and he gives less weight to the Circular. However, he is satisfied that the announcement does not raise any matters which would affect his decisions or require him to refer back to parties for further representations prior to reaching his decisions."

11. The decision letter continued by saying that inappropriate development should not be approved in the Green Belt except in very special circumstances. This is longstanding Government policy. He considered that the development had caused clear harm to the landscape and that there was little prospect of mitigation. He accepted the Inspector's conclusion that there was a need for further gypsy sites within that area and that that was a consideration which weighed in favour of the appeals. In addition, he said that there was no immediate prospect of further sites coming forward in the neighbourhood and that was an issue that "weighed materially in support of the appeals". He gave "separate and significant weight" to the personal circumstances of the occupying families and their rights under Article 8 of the European Convention on Human Rights. Having considered all those matters, he concluded that the special circumstances advanced in support of the appeals did not outweigh the harm arising from development. He therefore dismissed the appeals.
12. Mrs Murphy was dissatisfied with the Secretary of State's decision and challenged it in the Administrative Court. Her challenge came before Foskett J, who dismissed it. His judgment is at [2012] EWHC 1198 (Admin) and is available on BAILII. With the permission of Patten LJ, Mrs Murphy now appeals to this court.
13. Foskett J's decision was given on 8 May 2012 but, because of a desire to wait until the result of an application to appeal to the Supreme Court in Rooney v SSCLG [2011] EWCA Civ 1556, permission to appeal was not in fact granted until 21 January 2013. At that time the hearing date was expected to be 12 or 13 June 2013. However, towards the end of May, without opposition, an application was made to vacate the date because of the unavailability of counsel for the Secretary of State.
14. By an email of 31 May, the Civil Appeals Office said that no formal decision would be made until 10 June. On 11 June a new hearing date of 16 and 17 July was fixed. On that same day, some six weeks before the hearing date, Laws LJ refused an application for an adjournment on the ground that Mrs Murphy's chosen counsel, Mr Masters, was not available. Laws LJ said that Mrs Murphy had time to instruct fresh counsel. At that time it was by no means clear that Mr Masters would be unable to return whatever fresh engagement he had accepted. The application was renewed to me on 2 July, and I refused it on the same grounds that Laws LJ had refused it on 11 June.
15. On 10 July a third application to adjourn was made. The only evidence of any attempt to find fresh counsel was an email from Garden Court Chambers dated 10 July. It did not appear that, in the month that elapsed between the first refusal of the adjournment and the third application, Mrs Murphy had approached the Bar Pro Bono Unit or indeed any other chambers.
16. On 15 July a fourth application to adjourn was made. The grounds were exactly the same as the first application, and I refused it again for the same reasons. The convenience of counsel has never been a good ground for an adjournment. Apart from the single email of 10 July, it is quite unclear what, if any, efforts Mrs Murphy or her solicitors made to instruct fresh counsel. The enforcement notice was served nearly three years ago, and there has already been substantial delay in bringing finality to Mrs Murphy's position.
17. Mr Jones, from the Gypsy Council, made an application to adjourn orally this morning, which was the fifth application to adjourn, and we refused it essentially for the reasons I have given. Fortunately, the court had the benefit of a full skeleton argument prepared by Mr Masters for the purpose of the appeal and a transcript of the interchanges that took place between him and Patten LJ when Patten LJ gave permission to appeal, so that we were able to take into account all the points that were sought to be made on her behalf.
18. We also allowed Mr Jones to speak on Mrs Murphy's behalf in support of the appeal. He adopted and to some extent amplified the written submissions which had been made by Mr Masters.
19. I turn therefore to the merits of the appeal. The grounds of appeal are, if I may say so, rather diffuse, but the main points appear to me to be these:
20. In the light of his intention to revoke and purported revocation of the RSS, the Secretary of State ought not to have exercised his power to recover the appeals without giving Mrs Murphy the opportunity to make representations about whether that power should be exercised.
21. The Secretary of State ought not to have determined the appeals without giving Mrs Murphy the opportunity to make representations on the significance of the reinstatement of the RSS as a consequence of a decision in Cala no. 1. His failure to do so was either (a) a breach of the inquiry procedure rules, or (b) a breach of the rules of natural justice, or (c) a breach of Mrs Murphy's rights under Article 6 of the European Convention on Human Rights.
22. The Secretary of State was wrong in stating that policy H7 did not form part of the development plan. But, even if he was right, policy H7 was a material consideration to which he ought to have had regard, but did not.
23. The judge was wrong in holding that Planning Policy Statement 3: Housing (PPS 3) did not apply to gypsies and travelers. Alternatively if it did not, then it was unlawful because it discriminated against gypsies and travellers.
24. The allegation that the Secretary of State ought not to have recovered the appeal without giving Mrs Murphy an opportunity to make representations is not, so far as I can see, a ground that was relied on below. Nor is it pleaded. Moreover the decision impugned by this ground is the decision that the Secretary of State made on 22 September 2010. So any challenge is well out of time. Lastly, published guidelines say clearly that the Secretary of State may exercise this power in relation to significant development in the Green Belt. This case fell squarely within those guidelines. This ground of appeal therefore fails.
25. The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 apply to planning appeals. The Town and Country Planning (Enforcement) (Inquiries Procedure) (England) Rules 2002 apply to appeals against enforcement notices. Both sets of rules contain the rule in substantially the same form as follows:

1. "If, after the close of an inquiry, the Secretary of State –

(b) differs from the Inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the Inspector; or

(c) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),

1. and is for that reason disposed to disagree with a recommendation made by the Inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the reopening of the inquiry."

26. At paragraph 39 of his judgment, the judge said:

a. "It is clear from each of the decision letters that the Secretary of State considered whether he should refer back to the parties before reaching a final decision, but decided in each case that it was not necessary. He is, of course, only required under the rules to refer back to the parties if he is 'disposed to disagree with a recommendation made by the Inspector' because of some 'new evidence or new matter of fact (not being a matter of government policy)' that he takes into consideration. In the case of the appeal in which Ms Murphy was interested… the Secretary of State did not disagree with the recommendation of the Inspector. He did take into account as a material consideration his intention to abolish the RSSs and to revoke Circular 1/2006, but so far as the Hanrahan appeal was concerned, if anything those matters seemed to confirm the Inspector's recommendation rather than to cause the Secretary of State to doubt it. On that basis (and leaving aside any question of whether the new material was 'a matter of government policy' rather than some piece of 'new evidence' or a 'new matter of fact') it is difficult to see how there was any obligation under the rules to refer back to the parties."

27. I entirely agree. There is no point in my saying the same thing in my own words.
28. The Secretary of State accepted, and accepts, that even if the inquiry rules do not refuse him to invite further representations post-inquiry, the rules of natural justice might do so. The judge held that if the case did not fall within the inquiry rules, the decision whether or not to invite further representations was a matter for the Secretary of State's discretion. The exercise of that discretion could be challenged on the usual public law grounds, but not otherwise. It is not suggested that the judge applied the wrong test.
29. In the judge's view, this issue turned on the question whether the Secretary of State was correct in his appreciation of the status of policy H7. The Secretary of State had said that policy H7 did not form part of the development plan. The judge decided that the Secretary of State had been correct in stating that policy H7 was only a proposed policy and did not form part of the development plan. In so saying, he was, in my judgment, undoubtedly correct. Indeed, that was common ground at the inquiry.
30. Mrs Murphy had the benefit of the expert evidence of Mr Matthew Green at the inquiry. This report was dated 23 June 2010, that is to say after the Secretary of State's letter of 27 May to which Mr Green referred but before the Secretary of State had actually purported to revoke the RSS. Mr Green's view was that it was unlikely in the light of the letter of 27 May, which he accepted was itself a material consideration, as the Court of Appeal later confirmed in Cala Homes No. 2, that proposed policy H7 would be adopted.
31. Mr Masters, who represented Mrs Murphy at the inquiry, argued in his written skeleton argument that Mr Green's concession was made after the purported revocation of the regional statutory. That argument is simply hopeless on the facts. The fact is that it was common ground at the inquiry that H7 was a proposed policy which was unlikely to be adopted.
32. I find it difficult to see what Article 6 adds to the argument about breach of the rules of natural justice. The suggestion advanced in the written skeleton argument is that the Secretary of State was not an impartial and independent tribunal and was biased in favour of his decision to revoke the RSS. It is perfectly true that the Secretary of State is not an impartial and independent tribunal, but that does not mean that there has been any breach of Article 6. Mrs Murphy's civil rights are not determined by the Secretary of State alone. They are determined by the planning and judicial system, which includes an opportunity to challenge the Secretary of State's decision in the Administrative Court, which is undoubtedly an independent and impartial tribunal. Mr Masters' argument under this head was the very same argument that the House of Lords decisively rejected in R(Alconbury Developments Ltd) v the Secretary of State [2001] UKHL 23; [2003] 2 AC 295. Mr Masters complained that the judge did not deal with his argument under Article 6.
33. But Mr Maurici QC for the Secretary of State pointed out, in his written skeleton argument, that in the court below Mr Masters had accepted that his argument based on Article 6 added little, if anything, to the argument based on the rules of natural justice. But whether Mr Maurici was right or wrong in making that suggestion, the argument advanced by Mr Masters is a bad one.
34. I have already dealt with the argument that policy H7 formed part of the development plan. It did not. Mr Masters argued that it still amounted to a material consideration that the Secretary of State was bound to take into account, although accepting that the weight to be given to it was a matter for the Secretary of State alone. Policy H7 related to the provision of sites for gypsies and travellers. Its potential relevance was on the question of unmet need. The judge dealt with that point at paragraph 65 of his judgment as follows:

1. "…the short point made by Mr Maurici, which I accept, is that, whatever debate there may have been about the precise level of unmet need in the district, both the Inspector and the Secretary of State approached the situation on the basis that there was within the wider local area a need for further gypsy sites and that that was a factor that weighed in favour of the appeals. As Mr Maurici says, that point was in effect accepted in favour of Mr Hanrahan's appeal both by the Inspector and by the Secretary of State."

35. I agree. The judge continued at paragraph 67:

a. "It is clear from [paragraph 20 of the decision letter] that the Secretary of State did give significant weight in the balancing exercise to 'the lack of availability of alternative sites' (in other words, to a consideration amounting to an unmet local need), but did not feel able to say that it, together with other significant factors that militated in favour of the appeals, outweighed the harm to the Green Belt and the consequences for the AONB landscape. That is a matter of planning judgment with which the court cannot possibly interfere"

36. Again, I agree. This ground of appeal therefore fails.
37. I turn to PPS 3. Paragraph 21 of PPS 3 says:

1. "Regional Spatial Strategies should set out the region's approach to achieving a good mix of housing. Local Planning Authorities should plan for a mix of housing on the basis of the different types of households that are likely to require housing over the plan period. This will include having particular regard to:

Current and future demographic trends and profiles.

The accommodation requirements of specific groups, in particular, families with children, older and disabled people.

The diverse range of requirements across the area, including the need to accommodate Gypsies and Travellers."

38. There is a footnote linking the reference to gypsies and travellers to Circular 01/2006. There is a further reference to gypsies and travellers in Annex C. Paragraph 71 of PPS 3 says:

1. "Where Local Planning Authorities cannot demonstrate an up-to-date five year supply of deliverable sites, for example, where Local Development Documents have not been reviewed to take into account policies in this PPS or there is less than five years supply of deliverable sites, they should consider favourably planning applications for housing, having regard to the policies in this PPS including the considerations in paragraph 69."

39. Let me assume (without deciding) that PPS 3 does apply to gypsies and travellers, to what issue does it go? What it is saying is that where demand exceeds supply, the planning application for housing should be favourably considered. In other words, it goes to need. But the Inspector and the Secretary of State decided the question of need in Mrs Murphy's favour. The lack of sites weighed materially in support of the appeals.
40. In paragraph 9 of the decision letter, the Secretary of State said that he had considered PPS 3 as a material consideration so the complaint can go only to weight, which is a matter of planning judgment. Moreover, as Ouseley J pointed out in Taylor v SSCLG [2012] EWHC 686 (Admin) at paragraph 67:

a. "PPS3 does not stand alone but stands with the Circulars on the Green Belt, PPS 2, and Circular 1/2006 on Gypsy and Traveller Sites. Neither have been qualified by PPS 3 in 2010. Circular 1/2006 is more focused on the specific issue of gypsy and traveller sites and deals with unmet needs specifically and the role of temporary planning permissions in the transitional period before development plan documents have identified the necessary sites. PPS 3 does not alter the fact that these developments are inappropriate in the Green Belt and very special circumstances have to be shown before permission can be granted."

41. In my judgment, these observations apply with even more force to an AONB. Paragraph 71 of the PPS cross-refers to paragraph 69, which in turn refers to the suitability of a site for housing. It has been Government policy ever since the introduction of the planning system that land within the Green Belt is not suitable for housing except in very special circumstances. In our case, the Inspector recommended that the Secretary of State decided that, even giving significant weight to Mrs Murphy's need, the presumption against inappropriate development in the Green Belt was not outweighed. That was an entirely permissible and lawful planning judgment.
42. In consequence, I would dismiss the appeal.

Lord Justice Underhill:

43. I agree.

Lord Justice Tomlinson:

44. I also agree. These proceedings have led to the very considerable delay in compliance with the enforcement notice to which my Lord has already referred, and the time has now come for matters to take their normal course. I, too, would dismiss the appeal.

Order: Appeal dismissed