QUEENS BENCH DIVISION
ADMINISTRATIVE COURT OFFICE
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF LESLIE AYRES|| Claimant|
|SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE LOCAL REGIONS|
SEDGMOOR DISTRICT COUNCIL
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Timothy Mould (instructed by The Treasury Solicitor for the first Defendant)
(The second Defendant was not represented)
(AS APPROVED BY THE COURT)
Crown Copyright ©
Mr Justice Silber:
The background to the claimant’s application for planning permission
The grounds of challenge to the Decision
The Decision Letter
Permission for Five Years
“nonetheless although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of society does not confirm an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning work and in arriving at the decisions in particular cases .. To this extent there is thus a positive obligation imposed on the contracting states by virtue of Article 8 to facilitate the gypsy way of life”.
“a further relevant consideration to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available [for the gypsy], the interference [with Article 8 rights] is more serious than where such accommodation is available” (Paragraph 103).
The discussion at the hearing before the Inspector concerning permission for a limited period of years
The authorities on the duty of an Inspector to consider a temporary permission for 5 years
“So far as that is concerned, I fully accept that this has been made clear in the case of Top Deck Holdings Limited -v- Secretary of State for the Environment that there is no obligation on an inspector, in the absence of any reference to an appropriate condition, to search for a condition which might be used to assist an applicant who is appealing against the decision of a planning authority. However, in this case, one of the matters, which clearly influenced the Inspector, was the viability of the whole operation. As I have indicated there were signs that the operation was improving in its viability and that [the claimant] was making a success of it. On the other hand, it was only viable on the basis that he devoted a very considerable amount of time personally into the operation and if, for example, he became ill the position could be transformed. A time condition was obviously a possibility and was relevant, as is recognised by the specific reference by the local planning authority. Again I would say the appellant is not being unreasonable in making a criticism of the Inspector for not making any mention of that possibility. That is a further matter that I would put into the balance. One does not know whether the Inspector has considered it but not mentioned it or whether it is a case of his failing to consider it. In either event, he could be criticised to a minor degree in that regard. Whilst it is not a consideration which I would have interfered with the decision of the Judge, I think it is a matter to be taken into account on the general approach”.
“the Inspector should not have imposed upon him an obligation to cast about for conditions not suggested before him [but that] does not relieve him of the obligation of natural justice where a new point occurs to him which might be overcome by conditions to reopen the inquiry sufficiently so that, if the parties are so minded, they could suggest conditions to him which he would then be obliged to consider”.
“If a party to an appeal wanted the appeal to be considered on the basis that some condition could cure the planning objection put forward, then it was incumbent on [the applicant for the permission] to deal with that condition at the inquiry. Unless such condition has been canvassed the Secretary of State was not at fault in not imposing such a condition”(Marie Finlay v. Secretary of State for the Environment  J.P.L.802).
The Departmental Circulars
“Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that intention or because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be granted. For example, permission might reasonably be granted on an application for the grant of a temporary building to last seven years on land which will be required for road improvements eight or more years hence, although an application to erect a permanent building on the land would normally be refused”.
Paragraph 111 of that Circular states that:
Again, where an application is made for permanent permission for a use which may be “potentially detrimental” to existing uses nearby, but there is insufficient evidence to enable the authority to be sure of its character or effect, it might be appropriate to grant a temporary permission in order to give the development a trial run, provided that such a permission would be reasonable having regard to the capital expenditure necessary to carry out the development. However, a temporary permission would not be justified merely because, for example, a building is to be made of wood rather than brick. Nor would a temporary permission be justified on the grounds that, although a particular use, such as a hostel or playgroup, would be acceptable in a certain location, the character of its management may change. In certain circumstances it may be possible to grant temporary permission for the provision of a caravan or other temporary accommodation where there is some evidence to support the grant of planning permission for an application for an agricultural or forestry dwelling, but it is inconclusive, perhaps because there is doubt about the sustainability of the proposed enterprise. This allows time for such prospects to be clarified.
The significance of policy statements from the Secretary of State contained in policy guidance is that they are potentially material considerations to which the actual weight to be given is a matter for the decision maker (Tesco Stores Limited -v- Secretary of State  1 WLR 759 at 764, 777 per Lords Keith and Hoffmann respectively and Merritt -v- Secretary of State  3 PLR 125 at 137 per Mr. Robin Purchas QC, sitting as a Deputy High Court Judge).
(a) subject to considering and applying to the extent considered appropriate the policy guidance in the 1995 Circular, an inspector does not have an obligation in the absence of any reference to an appropriate condition to cast about for conditions not suggested before him (Top Deck);
(b) where a specific condition raised by the party would be a possibility, then the Inspector should consider it, but if he does not, that is not automatically a sufficient irregularity to justify interference with the decision made (Brightwell);
(c) if an Inspector wishes to raise a new point which might be overcome by a condition, natural justice would require him to reopen the inquiry so that the parties, if they are so minded, could suggest conditions to him that he would then be obliged to consider (Penfold).
Additional criticisms of the Inspector’s decision
“In balancing the rights of the [claimant] against the protection of the countryside in the public interest and other development plan considerations, I do not consider the Council’s action or mine to be disproportionate. Accordingly I conclude that there has been no violation of human rights under Article 8” (paragraph 45).
70A. –(1) A local planning authority may decline to determine an application for planning permission for the development of any land if –
(a) within the period of two years ending with the date on which the application is received, the Secretary of State has refused a similar application referred to him under section 77 or has dismissed an appeal against the refusal of a similar application: and
(b) in the opinion of the authority there has been no significant change since the refusal or, as the case may be, dismissal mentioned in paragraph (a) in the development plan, so far as material to the application, or in any other material considerations.
(2) For the purposes of this section an application for planning permission for the development of any land shall only be taken to be similar to a later application if the development and the land to which the applications relate are in the opinion of the local planning authority the same or substantially the same.
I understood Mr. Mould for the Secretary of State to consider as a matter of impression that section 70(A) would not preclude a second application being made by the claimant for planning permission but on that occasion the permission would be limited in duration to a period of five years. I need not make a decision on this but I merely record this opportunity possibly still open for the claimant.
MR JUSTICE SILBER: Thank you very much, Mr Mould, for sending me a copy of the circular. You drew my attention to paragraphs 11 to 15.PRIVATE
MR MOULD: Yes, my Lord, only because those were the corresponding paragraphs to the ones that my learned friend referred to.
MR JUSTICE SILBER: What, the conditions?
MR MOULD: Yes, and, as your Lordship will recall, I had found the paragraph --
MR JUSTICE SILBER: I thought the paragraphs that we were looking for were the ones dealing with temporary permissions. I do not think we went through these. Is that right, Mr Masters?
MR MASTERS: Yes, essentially my Lord is right.
MR JUSTICE SILBER: In any event, so far as the six conditions which are set out there are concerned, the position is that this condition was not a necessary condition?
MR MOULD: My Lord, yes, that is right. The reason that I drew attention to those paragraphs -- your Lordship is quite right that the real issue is about whether the condition is one which would satisfy the guidance on temporary conditions, it is just that Mr Masters, I think, had suggested during the course of his argument in reply that the corresponding paragraph to paragraph 11 in the circular, as I have said --
MR JUSTICE SILBER: I thought his point about it was -- and I am sure Mr Masters will correct me if I am wrong -- it was really the conditions relating to temporary.
MR MOULD: Well, if that is right, then --
MR JUSTICE SILBER: Is that right, Mr Masters?
MR MASTERS: My Lord, it is. I think Mr Mould's point is that, during the argument, I did suggest at some point that some of the passages may be new.
MR JUSTICE SILBER: What you did say was that -- you drew my attention to the Brightwell decision, which was given before the 1995 circular came in.
MR MASTERS: I was attempting to gain something from the Brightwell wording --
MR JUSTICE SILBER: What I am tempted to do, after having received this, is just to make some changes to paragraph 44.
MR MASTERS: My Lord, I have no objection to that. My Lord, it seems to me that the bones of your decision was a very, very well worded decision.
MR JUSTICE SILBER: It is what?
MR MASTERS: May I just praise you on the wording of your decision, which is very comprehensive and easy to read.
MR JUSTICE SILBER: Yes.
MR MASTERS: In passing, it seems to me the main point was that this issue was never before the inspector and that is the main finding of fact, and I think these subsidiary points do not really at the end of the day take matters much further.
MR JUSTICE SILBER: Do you have any comments to make on the grammatical points, the typographical errors?
MR MASTERS: I went through it because I know that it is useful to say that and I could not find any.
MR JUSTICE SILBER: Mr Mould found a few and I am going to adopt those and I am also going to put in the points about these conditions in the final version that you well get.
So, for those reasons, I think it follows that, notwithstanding your clear and cogent submissions, I have to dismiss this appeal.
MR MOULD: My Lord, I understand that Mr Master's client is legally aided and what I would ask for in terms of an order for costs is, if your Lordship is minded to make it, an order that the claimant should pay the Secretary of State's costs, but that those costs should be subject to detailed assessment and should not be enforced without the court's permission.
MR JUSTICE SILBER: I do not think you can resist that football pools order.
MR MASTERS: I cannot, my Lord. It is normal --
MR JUSTICE SILBER: And I think you would also like to ask for whatever the present form of wording is for a publicly funded certificate.
MR MASTERS: My Lord, indeed. I am not absolutely certain what the present form of wording is, so I am going to leave it at that. It was normally a legal aid taxation, but it is legal aid assessment.
MR JUSTICE SILBER: Yes, well, I order a detailed assessment.
MR MASTERS: I am grateful for that. My Lord, the only thing I raised with Mr Mould was that I would normally have two weeks in which to seek leave to appeal. I ought to ask my Lord first and formally whether one would grant leave to appeal. My Lord, I am not seeking it with any anticipation. As I have said before, I think the judgment is very well worded. It just gives me time to write an advice to that effect to my solicitors. I wonder if my Lord would extend the time to four weeks. I do not see matters getting further.
MR JUSTICE SILBER: You are not putting in any reasons at this stage in favour of permission to appeal?
MR MASTERS: My Lord, no.
MR JUSTICE SILBER: Bearing in mind that I have to make amendments to the judgment, so you will not actually get a copy of the final version of it probably until Monday, I suspect, if I extended the time until, what, 26th March, is anything wrong with that?
MR MOULD: No, I do not object to that.
MR JUSTICE SILBER: Well, I extend the time until 26th March.
MR MASTERS: I am grateful, my Lord. It helps to have that extra time.
MR JUSTICE SILBER: I just thought I ought to say that the final version will come out fairly shortly. It does deal with what I think is an interesting point. It will be available for you at the beginning of next week.
MR MASTERS: My Lord, may I just say that I was not able to find a copy of that circular myself but I am glad Mr Mould again on that had more success than me.
MR JUSTICE SILBER: I got it just in time, which is the important point about it. Thank you very much indeed. Can I just thank you both for your help in what was really a very interesting case.