England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2A 2LL
		17 November 2015

LORD JUSTICE RICHARDS:

1. This is a renewed application by Mrs Jane Lee, a Romani gypsy, for permission to appeal from an order of Lewis J sitting in the Planning Court. The case arises out of a refusal of planning permission, and the subsequent issue of an enforcement notice, in respect of the use of land in the Green Belt for the stationing of a mobile home. In fact, Mrs Lee's daughter and son-in-law were living on the site with two children in full-time education and a baby.
2. Appeals against the planning decision and the enforcement notice were recovered for determination by the Secretary of State rather than being left for determination by an inspector. This was done pursuant to a policy relating to traveller sites in the Green Belt, a policy which was the subject of ministerial written statements. The inspector who reported to the Secretary of State recommended the grant of a temporary planning permission for a three-year period. But the Secretary of State disagreed with the inspector's recommendation and dismissed the planning appeal. He also dismissed the enforcement appeal, save for minor variations to the notice and an extension of time for compliance from 9 months to 18 months.
3. Mrs Lee's challenge to the Secretary of State's substantive decision on the appeals was brought by way of an application under section 288 of the Town and Country Planning Act 1990 and an appeal under section 289 of that Act. Those matters were heard by Lewis J together with the cases of a Mr Connors and three other claimants. The judge dismissed all the applications and appeals before him.
4. The present application for permission to appeal relates only to Mrs Lee's case. Permission was refused by the judge below and in this court by Sullivan LJ on consideration of the papers. Mr Willers QC renews the application orally before me today. There is a linked application for permission to amend the grounds of appeal so as to rely on a ground not raised before Lewis J, but I should say that the new ground was raised in time to be considered and rejected by Sullivan LJ.
5. I will not go into the background in any further detail.
6. The first ground of appeal, that the judge should have found that the Secretary of State erred in his treatment of the best interest of the children, is not pursued on this renewed application. I had already considered that ground before learning that it was not pursued, and that enables me to express the clear view that the decision not to pursue it is a sound one.
7. Ground 2(a) is pursued. It is that the judge did not properly address or grapple with the appellant's argument that the Secretary of State had failed to take account of the fact that the inspector had concluded that if the family were refused temporary planning permission, they would be likely to camp on another unauthorised site within the Green Belt, with the result that similar and perhaps greater harm would be caused. Reliance is placed on paragraphs 23 to 28 of a judgment of mine in Moore v Secretary of State for Communities and Local Government [2013] EWCA Civ 1194 in which I dealt with a similar issue.
8. Sullivan LJ took the view that this ground was based on an error of fact, in that the Secretary of State did take the matter into account. He referred to paragraph 11 of the decision letter, where the Secretary of State expressed agreement with a passage in paragraphs 33 to 34 of the inspector's report.
9. That, however, does not appear to me to be a complete answer to the point. The inspector said at paragraph 33 of his report that it was likely that if planning permission was refused, the occupants would move onto another unauthorised site, "in all likelihood in the Green Belt", with all the attendant problems this would bring, including to the overall detriment of the daughter's health and the children's continuing education if they had to move school. In expressing agreement with that passage at paragraph 11 of the decision letter, the Secretary of State quoted most of the passage but omitted the phrase "in all likelihood in the Green Belt". Whether that omission is significant is open to argument. What is clear is that the likelihood of a move to another unauthorised site in the Green Belt was, in principle, of particular relevance to the question of harm to the Green Belt resulting from the refusal of a temporary planning permission and, therefore, to the overall balancing exercise. The inspector did not address this; it could be said that he did not need to because he took the view that temporary planning permission should be granted in any event. The Secretary of State, by contrast, did arguably need to address the point, yet he did not do so expressly, and it is arguable that he did not do so at all.
10. Of course, I bear in mind that the question whether there was a need to address the point will depend in part on whether and in what way the point was raised as an issue before the inspector and the Secretary of State. That is a matter which it has not been possible to delve into at this permission stage, and Mr Willers submits that the matter was in any event a material consideration for the Secretary of State to take into account.
11. The argument relating to this issue was raised before Lewis J but was not mentioned in his list of principal issues at paragraph 127 of his judgment and, if dealt with at all, was dealt with only in general terms in paragraph 175, where he referred to my judgment in Moore, pointed out correctly that it was a fact-specific case and stated without more that the Secretary of State in the present case did not make the errors identified in Moore.
12. I think that the appellant does have a real prospect of success in an appeal on this issue. That is sufficient for the grant of permission to appeal in relation to the section 288 claim. The second appeal criteria apply to the related section 289 appeal but the grant of permission on the section 288 limb of the challenge provides a compelling reason for the grant of permission as well on the section 289 limb of the challenge.
13. Grounds 2(b) and 3 are rightly not pursued.
14. That brings me to ground 4, which is the new ground for which the appellant seeks permission to amend. The ground seeks to challenge, as being in breach of the Equality Act 2010 and Article 6 of the European Convention on Human Rights, the Secretary of State's decision to recover the appellant's enforcement appeal for determination by the Secretary of State. It is sought to pray in aid the judgment of Gilbart J in Moore & Coates v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin), in which recovery decisions made pursuant to the Secretary of State's general policy were quashed.
15. The application to amend has prompted a short written response from the Secretary of State which stresses that this is a very belated attempt by the appellant to change tack and to advance a point diametrically at odds with the case below. Before Lewis J, as that judge records at paragraph 174 of his judgment, the appellant's counsel made clear that he was not seeking to challenge the direction in Mrs Lee's case that the appeal be determined by the Secretary of State. Moreover, the recovery direction in this case was given over two years ago. It was open to the appellant to challenge it by way of judicial review but that was not done until more recently. The appellant awaited the substantive decision of the Secretary of State and then challenged that, disavowing any challenge to the recovery direction. Lewis J dealt with the issues before him. He handed down his judgment in July 2014. The application to amend to raise this new issue was made only in May 2015. It is submitted that the decision in Moore & Coates and in various other applications that have been heard in other cases does not excuse the delay. Moreover, it is pointed out that in April 2015 the appellant lodged a belated application for permission to apply for judicial review of the recovery direction, an application which has been stayed pending determination of another judicial review claim on the issue of whether the Secretary of State is functus officio in respect of cases such as the present where the substantive decision on the appeal has been issued following the recovery decision by the Secretary of State. It is submitted on behalf of the Secretary of State that the appellant should not be allowed to advance the matter belatedly in an appeal from Lewis J's decision.
16. Those arguments satisfied Sullivan LJ that permission to add this ground should be refused. Mr Willers has sought to persuade me to take a different view. He lays stress on the fact that at the time of the hearing before Lewis J, the appellant and her legal representatives had no knowledge of the existence of the evidence which led to the conclusion in Moore & Coates that the recovery policy operated by the Secretary of State was unlawful. They first learnt of that evidence when the judgment in Moore & Coates was published in late January 2015. It is submitted that in those circumstances, the appellant ought not to be criticised for not having pursued before Lewis J.
17. The fact remains, however, that it was open to the appellant to challenge the recovery decision in the proceedings before Lewis J, as was done by at least one of the other claimants, who argued that the recovery policy involved unjustified differential treatment of travellers and gypsies in breach of Article 14 ECHR and the Equality Act 2010. The appellant, as I have said, expressly disavowed any such challenge at that time.
18. I should note too that in dismissing the challenge which was brought by one or more of the other claimants, Lewis J held that a challenge of that kind needed to be brought by way of judicial review rather than statutory challenge under section 288 of the 1990 Act. He accepted, however, that the court would in principle have had jurisdiction to hear an appeal under section 289 against a recovery decision. Mr Willers stresses before me that he limits his present application to the section 289 appeal. It is, however, to be noted that no section 289 appeal was actually brought against the recovery decision; it was not the subject of the proceedings before Lewis J. Moore & Coates was a judicial review claim, and the appellant has now brought a judicial review claim. Whether the court entertains or rejects that claim remains to be seen. I do not think that the possibility that permission to apply for judicial review will be refused provides a good reason for allowing a point to be taken belatedly in the present proceedings, especially when it formed no part of the original section 289 appeal.
19. All of these matters combine, in my judgment, to make it wholly inappropriate to allow this issue to be ventilated by the appellant for the first time in the present proceedings by way of a late amendment to the grounds of appeal to this court. I agree with the decision reached by Sullivan LJ on this point. I am satisfied that permission to amend the grounds of appeal by the introduction of ground 4 should be refused or, to put the matter another way, that permission to appeal on that ground should be refused.
20. Accordingly, I grant permission to appeal, limited to ground 2(a). It is a short point which, subject to anything Mr Willers may say, needs no more than a half-day time estimate and could, in my view, be dealt with either by two Lord or Lady Justices, including one with planning expertise, or by a three-judge court which includes a Lord or Lady Justice with planning expertise and may also include a High Court Judge.

Order: Application granted.