England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17th June 2008

1. MR JUSTICE MITTING: By an appeal decision dated 25th April 2007 Mr Clive Hughes, a Planning Inspector dismissed the claimant's appeal against the refusal of the local planning authority of permission to site gypsy caravans on land at Homefield Drive between Basildon and Wickford. The site has been the subject of much litigation and at least two planning appeals. It is in the Green Belt.
2. It is common ground that the general approach of the Planning Inspector to the issues in the case was lawful and accurate. Criticisms are, however, made by the claimants of two aspects of his reasoning. First, that the Inspector failed to take into account a particular material consideration that if the appeal was dismissed and the claimants had to leave this site, then in all probability a site within the district of Basildon District Council and also within the Green Belt would ultimately have to be found for them. So that, it is contended, the harm to the Green Belt caused by their occupation of this site would be at least counter-balanced by the harm that would be caused to the occupation of another site in the Green Belt.
3. Secondly, the claimant contends that the Inspector failed to give adequate consideration, both in his reasons and in his reasoning, to the educational needs of the claimant's children. In particular, because they were the children of gypsies, if their parents were evicted from this site then in all probability they would spend time travelling so that their education would be disrupted far more than would the education of a child of a non-travelling inhabitant who would, at worst, be expected to make one move.
4. The first submission was not made in terms, or by necessary inference, to the Inspector. The second was fully developed.
5. Basildon District Council, the second defendant to this claim, applies to strike it out under CPR 3.4(2)(a) on the basis that the statement of case discloses no reasonable grounds for bringing the claim. It is common ground that such an application can properly be made. In R (on the application of Blyth Borough Council) v First Secretary of State and George Wimpy Homes [2006] EWHC 3619, Burton J, determining a similar application in section 288 proceedings, noted in paragraph 10 of his judgment that no point had been taken by counsel for the respondent that there was no jurisdiction to consider the matter. He directed himself that he should apply the same sort of test as he would if determining an application for permission for judicial review.
6. In Evans v Secretary of State and Others [2003] EWCA Civ 1523, the Court of Appeal accepted that there was available in section 288 claims the opportunity to apply for summary judgment under part 24. In a case in which the court was satisfied that the section 288 application was always doomed to fail, it upheld the judgment of Lightman J, who heard the application at first instance, that summary judgment should be entered for the defendants. The court rejected in terms the submission that, by this process, what was, in effect, occurring was the introduction of a permission stage into a section 288 challenge: see paragraph 27 of the judgment of Simon Brown LJ.
7. Various synonyms have been deployed over the years, and indeed in these proceedings by counsel and by me, for the phrase contained in CPR 3.4(2)(a) that the claim is doomed to fail, that it is hopeless, that if at the end of the day a judge hearing the appeal would be unable to conclude that it should succeed, then there is no reasonable ground for bringing the claim and it should be struck out at this stage.
8. This claim was issued on 1st June 2007. It is now just over a year since issued. In the ordinary course, such a claim should be determined by this court well within the time that it has taken to bring this application. Steps are being taken this term and next to clear the backlog of cases in the Administrative Court. It is notorious that planning appeals, which in general do not engage human rights with the urgency and acuity of other claims, have found their way to the back of the queue. This unfortunate development is, however, being corrected and nothing that I say in the course of this judgment should be taken as any encouragement to either developers or local planning authorities to bring applications of this kind in section 288 appeals. It is to be hoped that in the reasonably near future, section 288 appeals will come on for hearing sufficiently quickly to make this type of application unattractive or even pointless.
9. With those observations I turn to the application on its merits. As to the first ground of challenge, Miss Colquhoun's arguments seem to me to be plainly right. Although it is true that matters not raised before the Planning Inspector can, in exceptional circumstances, give rise to a valid section 288 challenge where no further fact finding is required, nevertheless parties to planning appeals can ordinarily be expected to deploy the arguments upon which they say that planning permission should be granted or refused at the hearing, and if they do not they cannot subsequently complain that the Inspector has failed to appreciate and rule upon the particular argument advanced, especially if it is an nuanced and sophisticated version of a more familiar argument.
10. The familiar argument here expressly advanced was that if the claimants were evicted from this site, they would have nowhere else to go. The Inspector dealt with that argument in terms which are not open to criticism and which are not criticised. He cannot also reasonably be expected to have had in mind the sophisticated variant on that argument now advanced: that if the claimants were to be evicted from this site so they would find themselves lawfully on another site within the Green Belt within this district. The Inspector cannot be criticised for failing to deal with that argument. He did not, by not dealing with it, omit a material consideration in his decision and any argument to the contrary would have no prospect of success whatever. There are no reasonable grounds for bringing the claim thus founded.
11. The second argument requires more careful consideration. In paragraph 27 of the decision letter the Inspector set out, in what is accepted as adequate summary, the educational difficulties and needs of the children of the claimants. In paragraphs 29, 31 and 32, he dealt with the weight which was to be given to those needs in the following terms:

" . . . I fully accept the advantages of a settled education and the importance of continuity of education . . . The evidence does not demonstrate that any of the education needs of the children are either out of the ordinary or could not be met elsewhere. The health and education needs of the appellants and their families therefore, while significant, only carry limited weight . . .

I give less weight to their health and educational needs as these are not especially out of the ordinary . . .

I recognise that this would result in interference with the appellant's home and family life, access to health facilities would be likely to become more difficult and the education of the children would be likely to be disrupted. However, the harm which has been and would continue to be caused by the development in terms of its effect on the economic well-being of the country and the protection of the rights and freedoms of others is considerable. Taking into account all the material considerations, I am satisfied that this legitimate aim can only be adequately safeguarded by the refusal of permission."

12. In another planning appeal resulting in the report by Mr Kirby as Inspector of the 3rd March 2005 to the First Secretary of State, the argument advanced by these claimants was held by him to be of considerable weight. He summarised it in paragraph 110 of his decision in these terms:

"There is no evidence that those children who attend school could not have their needs met in other schools and home education could no doubt be arranged if they had a separate place to move to. But that is precisely the point: they do not, and if the enforcement notice is upheld there can be little doubt that it will be enforced through the courts if necessary. Children in the settled population often move schools very successfully, but the difference is that they are moving from one settled place to another and the transfer between schools can be organised in a seamless way. If these families are required to be moved without a new settled place to go to, they are likely to lose continuity and suffer a major disruption such that the problems experienced by some in settling into their new school from the appeal site will be repeated."

13. Similar considerations were found by the Inspector in Hughes v First Secretary of State and South Bedfordshire District Council [2006] EWHC Civ 838 to be of considerable weight. The Secretary of State, in paragraph 26 of his decision based upon the Inspector's report, noted that because there was no readily available alternative authorised site that "this will lead to a return to travelling and roadside camping and discontinuity of education". He gave considerable weight to that factor but considered that it was outweighed by other factors.
14. Thus, in the two cases to which I have been referred, the exceptional difficulty caused to children of gypsies and travellers who have no other site to go to has been expressly considered and considered to be of significant weight by the decision-maker. In the passages to which I have referred in this decision letter, the Inspector does not expressly refer to those considerations.
15. Mr Watkinson submits that accordingly his decision contains two challengeable legal errors which can be taken together. First, a reasons challenge: the Inspector has not set out his conclusion if he reached it upon that submission. Secondly, a rationality or proportionality challenge: he has not given weight to a material consideration, namely the exceptional disruption caused to the children of gypsy families who have nowhere settled to go.
16. I am bound to say that if I had been hearing this application as a section 288 appeal, it would have required prolonged and skillful argument to persuade me to allow the appeal on that ground. I do not believe that an appeal on that basis (which is the only basis now left) is likely to succeed. But that is not the test. The test is whether there are reasonable grounds for bringing the claim on that ground, or, to use any of the other synonyms, whether it is arguable, whether it would be doomed to failure, whether it would be bound to be rejected. In my judgment, this argument does not quite fall below that very high hurdle and although I reach the conclusion that I must dismiss this application with some regret, I do so because I am persuaded that that argument can reasonably be advanced and that it would be wrong to shut out the claimants from advancing it at a full hearing of their claim. Accordingly, I allow this application so as to strike out the first of the grounds of claim which I have identified, but refuse it in respect of the second ground.
17. On that decision, where do costs lie?
18. MR WATKINSON: My Lord, the application was brought for the whole claim to be struck out and the respondents to the claim have failed in their application, so I would ask for the costs of the application to be the claimant's in any event. If your Lordship were not with me on that, then I would submit the appropriate order would be no order as to costs because it would be fair for each party to bear the costs of the parts on which they have succeeded.
19. MISS COLQUHOUN: My Lord, you will not be surprised to hear that my suggestion is a partial award of costs in relation to that part of the application that I was successful with --
20. MR JUSTICE MITTING: I am not going to make cross orders for costs. That only causes confusion. The proper order in this case is either in the claim or no order.
21. MISS COLQUHOUN: My Lord, on that basis I would say in the claim, because if this matter is then to go on a single ground, as opposed to two grounds, for further consideration then clearly if the claimant is successful in relation to the section 288 appeal then costs will follow with that. My Lord, I think, in my submission, to make no order as to costs would be inappropriate because clearly we have, in effect, saved consideration of one particular aspect of this claim and it should not have been brought.
22. MR JUSTICE MITTING: Mr Watkinson?
23. MR WATKINSON: I have nothing further to add, my Lord.
24. MR JUSTICE MITTING: Costs will be in the claim. Can I deal with the time estimate for the hearing of the claim. It seems to me that an hour and a half is about right, is it not?
25. MR WATKINSON: Would your Lordship say two hours.
26. MISS COLQUHOUN: My Lord, the Secretary of State may take over the reins, but yes, my Lord.
27. MR JUSTICE MITTING: All right, time estimate of two hours. Thank you both for your helpful and succinct arguments.