ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (PLANNING COURT)
C M G OCKELTON (VICE PRESIDENT OF THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER))
SITTING AS A DEPUTY HIGH COURT JUDGE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HICKINBOTTOM
| FLINTSHIRE COUNTY COUNCIL
|- and -
THE QUEEN ON THE APPLICATION OF
|- and -
Richard Langham (instructed by Jayes Collier LLP) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 2 May 2018
Crown Copyright ©
Lord Justice Hickinbottom:
The Relevant Law and Policy: Gypsies and Travellers
"13. Advice on the use of temporary permissions is contained in paragraphs 108-113 of Welsh Office Circular 35/95, "The Use of Conditions in Planning Permissions" ["WOC 35/95"]. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. In cases where there is:
- unmet need and;
- no available alternative Gypsy and Traveller site provision in an area and;
- a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need;
local planning authorities should give consideration to granting a temporary permission where there are no overriding objections on other grounds.
14. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations as part of the LDP. In such circumstances, local planning authorities are expected to take into account the consequences of the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site ".
The Relevant Law and Policy: Children
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
Thus, when a child's article 8 rights are engaged, they must be looked at in the context of the UNCRC or, as it has been put, "through the prism of article 3(1)" (HH v Deputy Prosecutor of the Italian Republic, Genoa; F-K v Polish Judicial Authority  UKSC 25;  4 All ER 539 at  per Lord Wilson). Although not directly relevant to the issues in this case, it is perhaps noteworthy that the Rights of Children and Young Persons (Wales) Measure 2011 provides that, in Wales, when exercising any of their functions, including making or changing policies, the Welsh Ministers must have regard to the requirements of the UNCRC.
"(i) Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account.
(ii) Where the article 8 rights are those of children, they must be seen in the context of article 3 of the UNCRC, which requires a child's best interests to be a primary consideration.
(iii) This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with those of his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and properly represent and evidence the potential adverse impact of any decision upon that child's best interests.
(iv) Once identified, although a primary consideration, the best interests of the child are not determinative of the planning issue. Nor does respect for the best interests of a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests of the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.
(v) However, no other consideration must be regarded as more important or given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case. Further, the best interests of any child must be kept at the forefront of the decision-maker's mind as he examines all material considerations and performs the exercise of planning judgment on the basis of them; and, when considering any decision he might make (and, of course, the eventual decision he does make), he needs to assess whether the adverse impact of such a decision on the interests of the child is proportionate.
(vi) Whether the decision-maker has properly performed this exercise is a question of substance, not form. However, if an inspector on an appeal sets out his reasoning with regard to any child's interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision-maker reached the decision that the adverse impact to the interests of the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact of the decision he has reached on the best interests of the child, and has concluded that that impact is in all the circumstances proportionate. I deal with this further in considering article 8 in the context of court challenges to planning decisions, below."
" [I]t seems to me, as the cases repeatedly confirm, that article 3 of the UNCRC self-evidently requires the identification of what the best interests of any child are. In some cases, perhaps where the interests of a child and his primary carer are not necessarily the same, that may itself be a testing question; but in most contexts there is unlikely to be any antagonism between the wishes of that carer and a child's best interests, and the question of what the best interests of the children are may not be difficult. In a planning context, in which the child lives with a parent or other primary carer who has an interest in the relevant planning proceedings, a stable home is almost always going to be in that child's best interests, together with all that that brings including educational opportunities. Where that home is put in jeopardy in a planning application (and particularly where the result may be homelessness, or camping by the roadside), the interests of a carer who has an interest in the application and the best interests of the child are most likely to coincide, as they do in this case. In cases in which those interests do coincide, the carer will usually be in the best position to put forward evidence as to the potential adverse impact a decision may have upon any child; and the planning decision-maker (or, in any challenge, the court) will be entitled to assume that any and all relevant evidence of the child's best interests is put before it by that carer. Although of course there may be cases in which circumstances are such that carers cannot be relied upon to ensure that a child's best interests are brought fully to the attention of the court, it will not usually be necessary for the decision-maker or court to make its own enquiries as to evidence that might support those obvious best interests. To that extent, I respectfully disagree with the comments of His Honour Judge Thornton QC sitting as Deputy High Court Judge in the context of planning enforcement proceedings in Sedgemoor District Council v Hughes  EWHC 1997 (QB) at , that a planning decision-maker or the court will routinely be required to produce social enquiry or welfare reports on all children whose interests are or may be adversely impacted by any planning decision or even any planning enforcement decision."
The Factual Background
" the impact on the rural character and appearance of the area and the impact on the setting of the listed building and whether these site specific issues still outweigh other material considerations such as the best interests of the children on the site, the need for gypsy and traveller sites, the provision of alternative sites and the personal circumstances of the site occupants".
" [T]here is still a need for sites and to refuse to grant permission on a temporary basis would make the families and their children homeless and put them on the road side with no base to access healthcare and education."
"No details of the applicants or the site's residents' specific personal circumstances have been put forward other than that they have a need for lawful accommodation in this area where they can continue to live together as an extended family group and where they can obtain adequate health care and regular schooling for children. There are children living on the site, however the exact numbers and ages have not been provided by the applicants."
The Deputy Judge's Judgment
i) The investigation into the occupants of the Site was "rather casual, to put it mildly", in that enquiries into the children's circumstances were made only a few days before the first meeting of the Committee (paragraph 31 of the judgment).
ii) The answers gleaned from the investigation appear to have been "almost wholly wrong", because the Late Observations Report only referred to children with the surname Hamilton, whereas, although they had a record of one child named Hamilton under four years of age, the Education Department had no record of any Hamilton children attending school; and the plot numbers given in the Late Observations Report were different from those recorded in the school records for pupils giving Dollar Park as their address (paragraph 31).
iii) Consideration of the application proceeded on the premise that there were children on the Site, but their number, identity and age were unknown. The Deputy Judge continued (paragraph 34):
"The statement that the Children Act 2004 requires the Council to safeguard and promote the welfare of the children is of course correct, as is the fact that 'the impact of [any children] not having a settled base' would need to be taken into consideration if the application were to be refused outright. But in context, those assertions are seriously misleading. First, they imply that there has been an assessment of the needs of actual children on the site, so that the loss of a 'settled base' could be identified as contrary to their best interests. Secondly, they imply that the statutory and any other duties stand alone and are not merely factors (albeit important factors) to take into account. Thirdly, they imply that refusal in the present case would not be an option."
iv) That, he considered, was confirmed by the Officer's Report, which demonstrated that Ms Hancock had adopted the flawed approach of treating "the existence of children attending a local school [as] sufficient to motivate and justify the advice [to grant permission] without any further investigation" (paragraph 35). He continued (paragraph 36):
" [T]he problem is that the view that the existence of children, rather than an analysis of their interests, justifies the grant of planning permission in the situation under examination pervades the report itself and the advice in it."
"For these reasons I have reached the view that the first ground of challenge is made out on the general basis that [the Council] ought to have ascertained and evaluated the relevant facts in relation to children. In these circumstances it is impossible to say what the decision would have been if the error of law had not occurred, because the facts remain unclear and the evaluation has not been made. [Mr Jayes] succeeds on the first ground."
The Parties' Contentions
i) It was unfair to describe Ms Hancock's investigations into the children as "casual". Because of her previous dealings with the Site, including several previous visits, she already had some knowledge of the occupants. She made enquiries of the Education Department; and, when no substantive response was forthcoming, she visited the Site and spoke to Mr Hamilton. She had no reason to disbelieve the information that he had given her. In any event, she made clear that the additional information later obtained from the Education Department would not have altered her conclusions or advice to the Committee.
ii) The Council did not accept that the evidence as to children obtained from Mr Hamilton and passed on to the Committee was "wholly wrong" differences from time-to-time in names or plots at which they reside do not necessarily mean a difference in identity of the relevant children, or the position may have changed in the interim but, in any event, as the Deputy Judge himself accepted (at paragraph 32 of his judgment), that would not in itself render the decision unlawful, because (a) there was no reason for the officer or the Committee to disbelieve the information given, and (b) whether or not the information was accurate, it is clear that there are children resident at the Site who are registered as pupils at the local school.
iii) The Deputy Judge's criticisms set out in paragraph 34 of his judgment are also not well-founded. The reference to the Children Act 2004 in the Officer's Report did not imply that a formal assessment of the children's needs had been carried out: a formal assessment had not been carried out, and, for the reasons given in Stevens, there was no need for such an assessment. Nothing in the Officer's Report suggested or implied that the Children Act duty or any other relevant duty "stood alone". Neither did the report possibly imply that refusal of planning permission was not a possibility, as is clear from her warning (at paragraph 7.62) that, if refusal was contemplated, then the impact of the children losing their settled base would have to be taken into account as a primary consideration.
iv) It is not a fair reading of the Officer's Report to say that it demonstrated that Ms Hancock had adopted the flawed approach of treating "the existence of children attending a local school [as] sufficient to motivate and justify the advice [to grant permission] without any further investigation". The officer did not assume that the mere existence of children on the Site meant that refusal of planning permission would be contrary to the children's best interests, and justified refusal: she assessed that it would be in the children's best interests to remain on the Site rather than be forced into roadside living; and that the interests of the children, taken with other factors that favoured grant of permission, outweighed the identified planning harm such that temporary planning permission should be granted.
Discussion and Conclusion
Lord Justice Lindblom: