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POWYS COUNTY COUNCIL V NATIONAL ASSEMBLE FOR WALES AND JOHNATHAN HANSON [2000] EWHC Admin 313 (30th March, 2000)
CASE NO: CO/4392/99
IN THE HIGH COURT OF JUSTICE
SITTING AT SWANSEA CROWN COURT
QUEENS BENCH DIVISION
CROWN OFFICE LIST
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Thursday 30 March 2000
BEFORE:
THE HON MR JUSTICE TURNER
POWYS COUNTY COUNCIL
V
NATIONAL ASSEMBLE FOR WALES AND JOHNATHAN HANSON
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
MR IAIN COLEVILLE (instructed by RJ EAGLE for the Appellant)
(1ST RESPONDENT NOT REPRESENTED)
ASHLEY UNDERWOOD (instructed by Community Law Partnership for the
2nd Respondent)
____________________
Judgment
As Approved by the Court
Crown Copyright ©
POWYS COUNTY COUNCIL
v.
NATIONAL ASSEMBLY FOR WALES and
JONATHAN HANSON
REASONS FOR J U D G M E N T
MR JUSTICE TURNER:
1. This is a statutory appeal from the decision of an inspector
appointed by the first respondent to hear the appeal of the second respondent
from the decision of the applicants. By that decision the applicant County
Council had refused to grant planning permission to the second respondent to
enable him to site two caravans on a parcel of land known as Maes Bwch
Dihangol, Argoed Lane, Nantglas, Llandridnod Wells, in the county of Powys. By
decision which was promulgated on the 28th September, 1999 the
appeal was allowed. The first respondent has not appeared on the hearing of
this appeal and seeks only to be heard as to costs. There is a history to the
matter which is critical to an understanding of the issues which arise for
decision in the present case.
2. On the 16th July, 1996 an inspector appointed by the
Secretary of State for Wales had allowed the appeal of the now second
respondent (the respondent) against the applicant county council which had
refused to grant planning permission to the respondent for development of the
above mentioned site by placing on it two caravans. That appeal was allowed,
subject to conditions that continued use of the land for the siting of two
residential caravans would be permitted. The conditions were that:
1. Use for the respondent and his immediate family for two years from the date
of the decision letter or until he left the site, if earlier;
2. At the expiration of the period of two years, or sooner if vacated, the
permitted use was to cease.
3. No more than two caravans were to be sited on the land.
There was an additional, but immaterial, condition also attached to this
permission. The application for permission in the current matter was again for
the siting of two caravans on the land. However, by the time that the appeal
came to be heard, the application was for permission for the siting of three.
In the course of the decision letter in respect of the first (1996) appeal, the
inspector had given detailed planning reasons why it should not succeed.
These were that the effect of the proposed caravans upon the character and
appearance of the surrounding area, the agricultural arguments and the
implications for safety and the free flow of traffic along Argoed Lane did not
justify an exception to the policies which were designed to protect the area.
The (now) respondent succeeded on the argument that owing to his status as a
gypsy, his circumstances outweighed any planning objections based on only
reasons of a planning nature. In the course of the decision letter, the
inspector wrote
I consider that the strong planning objections to this proposal amount to a
convincing case for dismissing this appeal.
He went on to say that
Refusing permission would be likely to cause hardship to (the respondent) and
his family and I am concerned at the impact upon his daughter Nadie. ... I
consider the need to provide a degree of stability, to enable her to continue
her education, presently outweighs the amenity and highway considerations. She
is now 9 years old and a temporary consent for two years would provide security
to enable her to complete her primary education. This period would enable the
appellant to seek, with the Council's assistance, suitable alternative
accommodation conveniently located to enable his daughter to attend a secondary
school in the area. I shall therefore allow the appeal to the extent of
granting permission for 2 years which will be personal to the appellant since
it is only justified on the basis of his existing very special
circumstances.
3. On the hearing of the instant appeal, the main issues identified by
the inspector were:
9. These are whether the appellant's personal circumstances, and the arguments
in relation to his claimed gypsy status, outweigh any planning objection to the
development, together with the matter of the provision of accommodation for
gypsies.
The essence of the decision was that the respondent had retained his gypsy
status and that his personal circumstances, although categorised as "not very
robust" (see paragraph 25 of the decision letter) were such that due to the
"very exceptional personal circumstances and that(sic) of his daughter" the
grant of permission was justified.
4. Before this court, the applicant council challenged this result on
four grounds:
1. The finding that the respondent was a gypsy;
2 The respondent's personal circumstances could not outweigh the finding of
strong and convincing planning objections;
3. Failure to pay proper regard to all the material planning considerations,
including the fact that there was available in Welshpool a suitable gypsy
site;
4. There was no basis upon which the inspector could have arrived at the
conclusion that the disruption to the respondent's daughter's education
outweighed the planning considerations which were "strong and convincing".
What is at once striking about this decision is that, having regard to the
conclusions reached in the previous appeal, which had not been the subject of
any challenge by the parties in the course of the instant inquiry, the
expectation must have been that attention would be focused on the question what
changes, if any, had taken place in the respondent's circumstances which would
justify a different outcome to the application which underlies the present
appeal. Logic would tend to suggest that, even if the respondent's
circumstances had not significantly altered for the worse, the result should
have been unfavourable to him. It is, in my judgment, inescapable that the
inspector in some way failed to appreciate the true significance of the appeal
process which had been conducted in front of him. Whether or not this failure
gives rise to the position where the margin of latitude, which is accorded to
an inspector, is such that his decision is not susceptible to a successful
challenge is a problem which will have to be addressed later in this
judgment.
5. The guiding principle on this issue is to be found in the
observations of their Lordships' House in City of Edinburgh Council
v. Secretary of State for Scotland and others [1997] 1 WLR 1447. In
that case both Lord Hope and Lord Clyde emphasised that the decision taker was
accorded a wide measure of latitude in forming his decision and that the
court's function of review was limited
to see that the decision-taker had regard to the presumption (in favour of the
development plan) not to assess whether he gave enough weight to it where there
were other material considerations indicating that the determination should not
be made in accordance with the development plan. [Lord Hope p1450].
Moreover (section 18A) has not touched the well established distinction in
principle between those matters which are properly within the jurisdiction of
the decision-maker and those matters in which the court can properly intervene.
It has thus introduced a requirement with which the decision-maker must comply,
namely the recognition of the priority to be given to the development plan. It
has thus introduced a potential ground on which the decision-maker could be
faulted were he to fail to give effect to that requirement. But beyond that it
still leaves the assessment of the facts and the weighing of the considerations
in the hands of the decision-maker. It is for him to assess the relative
weight to be given to the development plan ...
Correspondingly the power of the court to intervene remains in principle the
same as ever. That power is to challenge the decision. The grounds in the
context of planning decisions are contained in ... the Act of 1972, namely that
the action is not within the powers of the Act, or that there has been a
failure to comply with some relevant requirement. ... Section 18A has not
innovated upon the principle that the court is only concerned with the legality
of the decision-making process. As Lord Hoffman observed in Tesco Stores v.
Secretary of State for the Environment [1995] 1 WLR 759, 780:
If there is one principle of planning law more firmly settled than any other,
it is that matters of planning judgment are within the exclusive province of
the local planning authority or the Secretary of State.
Thus, Lord Clyde at p1458. He continued on p1459 to discourse on the duties of
the decision-maker and continued
And having weighed these considerations and determined these matters he will
require to form his opinion on the disposal of the application. If he fails to
take account of some material consideration or takes account of some
consideration which is irrelevant to the application his decision will be open
to challenge. But the assessment of the considerations can only be challenged
on the ground that it is irrational or perverse.
Such was the challenge which the appellant county council mounted to this
decision, in the respects already identified.
6. In order to follow the argument, some closer attention to the facts
is required than has yet been given. There are two development plan policies
to which reference must be made. The first is the Powys County Structure Plan
1996, while the second is the Radnorshire Local Plan. Policy H15 of the
former, where relevant, provides that:
Proposals for the development of sites for Gypsies residing in or resorting to
the County will be permitted providing that:
A. The need for a gypsy caravan site has been demonstrated to the satisfaction
of the local planning authority;
B. Safe access is available;
...
G. Sites can be adequately screened;
H. Environmental, conservation ... and other interests are safeguarded.
Paragraph RH15 of the latter, where relevant, provides that:
Proposals for the development of sites for the accommodation of gypsies will be
permitted where they comply with the following criteria:
1. Applicants shall demonstrate to the satisfaction of the Council that the
proposed site shall accommodate gypsy households who have resided in or
resorted to the area. Proposals for the development of isolated small sites
will only be permitted for individual households on a personal basis where
overriding reasons of exceptional personal circumstances are demonstrated.
2. The proposed development shall not unacceptably adversely affect the
landscape
3. The proposed development shall comply with the local authority's
requirements for visibility, access parking and turning space.
...
8. The siting design density and number of caravans ... shall maintain
acceptable living conditions and shall not adversely affect the character and
amenity of the surrounding environment. ...
In addition to these locally derived planning developments criteria, the
Secretary of State for Wales provided guidance in the document Planning
Guidance (Wales): Planning Policy (May1966). By paragraph 14 of this document
it is provided that
Unless otherwise specified, a planning permission runs with the land and it is
seldom desirable to provide for any other arrangement. Exceptionally, even
though such considerations will rarely outweigh the more general planning
considerations, the personal circumstances of an occupier, personal hardship or
the difficulties of businesses which are of value to the character of the local
community, may be material to the consideration of a planning permission. In
such circumstances, a permission may be made subject to a condition that it is
personal to the applicant.
In another circular emanating from the Department of the Environment and the
Welsh Office it is provided by paragraph 22 that
As with any other planning applications, proposals for gypsy sites should
continue to be determined solely in relation to land-use factors.
Whilst gypsy sites might be acceptable in some rural locations, the granting of
permission must be consistent with agricultural, archaeological, countryside,
environmental, and green belt policies. ... The aim should always be to secure
provision appropriate to gypsies' accommodation needs while protecting
amenity.(Emphasis supplied, see later).
7. Now, in the decision letter in respect of the first decision, the
inspector had addressed the respondent's personal circumstances in some detail.
The inspector noted (paragraph 22) that on the evidence before him there was
"little alternative accommodation ... currently available consistent with a
gypsies' (sic) lifestyle". Then had continued in paragraph 23 as set out
above. The sense of this paragraph was that, at the stage when secondary
education is about to begin, the consideration of stability will not apply and
that, in his assessment, it would be reasonable for the planning consent to
terminate, other things always apart. In the next paragraph, the inspector
stated that "it would be for the Council to judge any future applications on
their individual merit".
8. In approaching the decision in the instant case, it is to be noted
that the inspector, having referred to background matters, in his decision
letter said that
The conclusions of the inspector at the time of the earlier case are still
relevant regarding the impact of the development on both the character of the
area and highway safety. I take the view that the use of the access causes a
serious reduction in highway safety standards and the stationing of the
caravans seriously harms the character and appearance of the locality and the
Wye Valley Special Landscape Area. (paragraph 6).
He concluded these introductory remarks by stating that "overriding personal
circumstances would have to be demonstrated in order to allow the current
appeal" (paragraph 8). The evident weakness of his decision is that on
analysis of the underlying facts there had been no change in the relevant
facts, except, perhaps in a sense adverse to the respondent. The change, such
as it was, related to the fact that the respondent had made no efforts to find
alternative accommodation, which was in fact available, and his daughter had
embarked on her secondary education. The uncontradicted evidence of the
Education Authority, which the inspector accepted was a 'cogent submission'
(para22), was to the effect that
A significant number of pupils change schools, as a result of a change in
residence every year and in the vast majority of cases this is accomplished
with no adverse effect upon the pupils at all. With the increased mobility
within society it is quite likely that this trend will continue and schools are
well equipped to assist ... with minimum disruption. ... A pupil in year 8
would have no difficulty, whatever, in transferring to an alternative secondary
school. If the transfer was to become necessary, it would be better if the
transfer was to take place while the pupil concerned was in year eight rather
than waiting until she was in year 10 or 11. ... (paragraph 23).
It comes as no surprise that the inspector concluded in the next paragraph that
the claimed personal circumstances were "not very robust".
9. What is hard to understand is the next sentence in paragraph 25 of
his decision:
But I am mindful that it is unfortunate if the education of a child has to be
suddenly disrupted.
This is at odds with the "cogent submission" made by the Education Authority
and, at the same time, appears to ignore the reasons given in the earlier
inspector's decision letter, the basis of his reason for not disrupting the
primary school education and the history of inactivity on the part of the
respondent since that date in taking no steps to find alternative
accommodation. Moreover, the use of the adverb "suddenly" in the context is
singularly inapt to describe the nature of the change to which the respondent's
daughter would be exposed if she were now to be required to move school. Such
was inexorably going to take place within the time scale envisaged in the
previous decision
10. It is now relevant to address the grounds of appeal in the order in
which they appear, but first I should say that at the conclusion of the
hearing, and having indicated that the appeal would be allowed, I said that I
would not disturb the finding of the inspector in respect of the inspector's
decision as to the respondent's status as a gypsy. This was a straightforward
issue of fact which it was for the inspector to make on the evidence which he
had heard. Crucially on this issue he found
The (respondent's) travelling does have an economic purpose that is pursued in
an attempt to seek a livelihood. It does appear to be seasonal ... . in my
opinion he has held on to his gypsy status. However, I consider that the hold
is tenuous ... .
It cannot be shown that he misunderstood or failed to appreciate the evidence
which he had heard and, accordingly, his decision, although one which others
might equally well not have reached, is not amenable to successful
challenge.
11. Grounds 2 and 3. Here the inspector correctly identified the core
issue (paragraph 9) as being whether the respondent's identified status as a
gypsy outweighed any planning objections to the development. He also correctly
appreciated that there were 'strong and convincing planning objections'
against the placing of caravans on the site. Here, the submission was made
that although the personal circumstances of an applicant should not be ignored
in the consideration of this issue but they should only be given direct effect
in exceptional or special circumstances. Lord Scarman in Westminster City
Council v. Great Portland Estates plc [1985] 1 AC 661 said at
p670
However, like all generalisations Lord Parker's statement [ "what is really to
be considered is the character of the use of the land, not the particular
purpose of a particular occupier"] has its own limitations. Personal
circumstances of an occupier, personal hardship, the difficulties of businesses
which are of value to the character of a community are not to be ignored in the
administration of planning control. ... The human factor is always present, of
course, indirectly as the background to the consideration of land use. It can,
however, and sometimes should, be given direct effect as an exceptional or
special circumstance. But such circumstances, when they arise, fall to be
considered not as a general rule to be met in special cases. If a planning
authority is to give effect to them, a specific case has to be made and the
planning authority must give reasons for accepting it. It follows that, though
the existence of such cases may be mentioned in a plan, this will only be
necessary where it is prudent to emphasise that, notwithstanding the general
policy, exceptions cannot be wholly excluded from consideration in the
administration of control.
It is probably only necessary to add that the words 'direct effect' in their
context were plainly intended to mean 'direct planning effect'.
12. Reference was made to paragraph 22 of the Circular 1/94:Gypsy Sites
and Planning which provides that
As with any other planning applications, proposals for gypsy sites should
continue to be determined solely in relation to land use factors. Whilst
gypsy sites might be acceptable in some rural locations, the granting of
permission must be consistent with agricultural, archaeological, countryside,
environmental and Green Belt policies. ... The aim should always be to secure
provision appropriate to gypsies' accommodation needs while protecting
amenity.
Some doubt has been expressed as to the intention underlying this paragraph;
see Rexworthy v. Secretary of State for the Environment [1998]
JPL 864.. But this was removed by letter from the Department of the
Environment Transport and the Regions dated 16 July 1998 which stated that
It may be helpful to emphasise that Circular 1/94 requires that planning
applications by gypsies be considered without regard to any prejudice against
gypsies: that is what is meant when it says that applications by gypsies
should "be determined solely in relation to land use factors"´
So, it was submitted that unless personal circumstances were special or
exceptional, they should not directly affect the outcome of an application.
The phrase 'not very robust' was inconsistent with the existence of
circumstances which were special or exceptional. The inspector had given no
reasons which stood up to examination to support his conclusion that such
circumstances did in fact outweigh the planning considerations.
13. It was further submitted that it was only when the arguments in
relation to planning considerations were finely balanced that personal
circumstances could be brought into the decision making process; see decision
of Taylor J in New Forest DC v. Secretary of State for the
Environment [1984] JPL 178 where at p179 he said
It was proper for the Minister to take into account personal circumstances, as
indicated in the development control policy notes, where matters might be
finely balanced, and to consider the effect that a decision might have on the
individual applicant. It could only obviously be a consideration on which the
periphery of the main planning issues which he had to take into account.
Even then, it was submitted that personal circumstances should not prevail over
strong and convincing planning objections; see Circular Planning Guidance
Wales: Planning Policy, May 1996 (above).
14. Since the respondent had made no alternative living arrangements
since the result of the first appeal and there was evidence that such could
have been made, the decision of the inspector that there were strong and
compelling reasons why those circumstances should prevail over planning
considerations was one which was clearly perverse.
15. Ground 4. Having found that there was an available site at
Welshpool where the respondent could be accommodated without fear of
discrimination (paragraph 9 of the decision letter), the inspector failed to
take this factor into account in the reasoning process which led to his
decision. It should not be overlooked that by itself, the existence of an
available gypsy site would not found a reason to refuse an application (see
paragraph 21 of Circular 1/94), but, it was submitted, before reaching his
decision the inspector should expressly have included such a consideration.
16. The principal submission made by the respondent was that, for the
reasons identified in the Edinburgh City Council case, the court should
not interfere with the inspector's decision on the facts which were before him
and where he had correctly directed himself as to the applicable law. The
submission was that it fell to the inspector to determine how much weight
should be attached to any of the individual factors which went to the making of
the decision. A warning shot was also sounded to the effect that the court
should not interfere with the decision maker to whom Parliament had entrusted
the decision; see Pulhofer v. Hillingdon LBS [1986] AC 484 at
p518 per Lord Brightman.
17. The inspector had found, it was submitted, that there were
circumstances which justified the strong and convincing planning objections,
which were not challenged, being overridden. The inspector's recognition that
the personal circumstances of the respondent were 'not very robust' meant that
he had considered the weight to be attached to them was, nevertheless,
sufficient to override the planning objections. As such it was immune to
successful challenge. Moreover, the inspector's decision should be seen in the
light of public policy as contained in Circular 2/94 which encouraged the
private provision of gypsy sites, even where public provision was adequate; see
paragraphs 4, 20, 21 and 24. The applicant's submission that the inspector had
accepted the advice of the Director of Education, was incorrect. It was
submitted that "plainly he did not" and preferred the respondent's evidence on
the point; see paragraph 20 of the decision.
18. As to ground 3 of the appeal, it was submitted that it was
unarguable that the inspector had it in mind when making his decision. In this
context, paragraphs 18 - 20 and 22 - 25 showed that the inspector did have this
factor present to his mind when making his decision.
19. As already announced my decision was in favour of the applicant's
arguments on grounds 2, 3 and 4 of their appeal. My reasons can now be shortly
stated. I was unable to accept the respondent's submissions in regard to the
inspector's rejection of the evidence from the Director of Education which he
expressly found not only to have been a 'cogent submission', but also the
inspector had gone out of his way to say that he had "heard no evidence from
the (respondent), which I consider materially challenges" it. The position is
precisely to the opposite effect of the submissions made on this issue on the
respondent's behalf. Similarly, paragraph 25 of the decision letter, which
represents the working out of the inpsector's decision contains errors of
understanding about what the Director of Education had said, what was the
position of the respondent's daughter and the 'sudden disruption' of her
education which, as I have said, was not the case at all and was equally and
obviously going to occur at or about the time when it would in the ordinary
course of events. This is so, even if the purpose of the two year period
specified in the earlier decision was ignored. Furthermore, the inspector
took no account of the existence of places on the site in Welshpool when
explaining his decision. They were undoubtedly a relevant factor. I am quite
unable to accept that the attempt to 'wrap up' all the evidence and submissions
which he had heard in paragraph 28 of decision letter is an effective
substitute for express and reasoned decision in relation to relevant matters
which were in issue before the inspector.
20. It must follow from the above that the decision of the inspector to
allow the appeal of the respondent was, in my judgment one which no reasonable
inspector could have reached and was irrational for the following reasons:
1. There were no circumstances of a compelling personal nature which should
have led the inspector to conclude that the education of the respondent's
daughter was a matter of such importance that it could outweigh the planning
objections;
2. There was evidence that the respondent's daughter could be educated at
another school without any or any significant disruption;
3. There was evidence of the availability of a gypsy site at Welshpool where
there would be no discrimination against the respondent;
4. There were powerful planning objections to the continued siting of the
respondent's caravans on the land in question.
In sum, there were no considerations of a compelling nature to have enabled the
inspector to reach the decision which he did which led him to elevate the 'not
very robust' personal circumstances above the compelling planning
objections.
The decision letter must be quashed.
-------------------
MR JUSTICE TURNER: A draft of the proposed judgment has already been
circulated to the parties and I now formally hand it down.
MR COLVILLE: My Lord, before my Lord arrived in court we were handed a
copy of page 12. My Lord, is that to be-----
MR JUSTICE TURNER: That is to be substituted for the existing one. There
was a very minor typographical error.
MR COLVILLE: My Lord, I would ask for an order as to costs. My Lord has
indicated at the end of the decision that the decision be quashed, I would ask
for a formal order to that effect allowing the appeal.
As for costs my Lord, the first respondent has agreed to pay the applicant's
costs - the appellant's costs up to 9th February, my Lord, to the sum of
£3,527.10.
MR JUSTICE TURNER: £3,527...
MR COLVILLE: And 10 pence.
MR JUSTICE TURNER: Do you really have to worry about the pennies?
MR COLVILLE: My Lord, I am sorry it is 50 pence, not 10 pence.
MR JUSTICE TURNER: Then perhaps we should worry about it.
MR COLVILLE: My Lord, that is what has been agreed and that is what my
instructions would be; the first respondent costs to limit their costs have,
though not wishing to show any discourtesy to the court, not attended today.
MR JUSTICE TURNER: I fully understand the reasons why they did not.
MR COLVILLE: My Lord, as for the costs from 10th February onwards, my
Lord, I would ask for an order for costs against the second respondent. My
Lord, the second respondent is legally aided and----
MR JUSTICE TURNER: Not to be enforced without leave.
MR COLVILLE: My Lord, indeed. My Lord, those are my submissions as far
as the costs are concerned.
MR JUSTICE TURNER: Yes.
Mr Watkinson?
MR WATKINSON: My Lord, there is an argument - I simply make this
observation, that the Welsh Assembly should pay the whole of the costs since it
is Welsh Assembly's Inspector's decision that brought us here and the Welsh
Assembly----
MR JUSTICE TURNER: Mr Watkinson, if you had not sought to uphold the
decision, costs subsequent to 9th February would not have been incurred.
MR WATKINSON: My Lord, indeed. Though I would submit that the second
respondent was justified in pursuing the matter. My Lord, if that observation
finds no favour - I see that it does not----
MR JUSTICE TURNER: I think you are correct.
MR WATKINSON: ----then I am content with the order as sought by my
learned friend. I would ask for detailed legal aid assessment of the second
respondent's costs.
MR JUSTICE TURNER: Yes, thank you very much.
___________________
© 2000 Crown Copyright
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