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Session 2003 - 04
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South Bucks Distict Council and another (Respondents) v. Porter (FC) Appellant
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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE South Bucks District Council and another (Respondents) v. Porter (FC) Appellant) ON THURSDAY 1 JULY 2004 The Appellate Committee comprised: Lord Steyn Lord Scott of Foscote Lord Rodger of Earlsferry Lord Carswell Lord Brown of Eaton-under-Heywood HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSESouth Bucks District Council and another (Respondents) v. Porter (FC) Appellant)[2004] UKHL 33LORD STEYN My Lords, 1. I have read the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in complete agreement with it. I would also make the order which he proposes. LORD SCOTT OF FOSCOTE My Lords, 2. I have had the advantage of reading a draft of the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood and am in full agreement with the reasons he has given for allowing this appeal. LORD RODGER OF EARLSFERRY My Lords, 3. I have read the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in complete agreement with it. I too would make the order which he proposes. LORD CARSWELL My Lords, 4. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Brown of Eaton-under-Heywood. I agree with his reasons and conclusion and I would allow the appeal and make the order which he proposes. LORD BROWN OF EATON-UNDER-HEYWOOD My Lords,
Introduction
5. This is the fourth appeal before the House in recent years in which your Lordships have had to consider the adequacy of reasons given in decisions made under the Town and Country Planning legislation. The three previous decisions were Westminster City Council v Great Portland Estates plc [1985] 1 AC 661 ("Westminster") concerning an aspect of the council's adopted district plan, Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 ("Save") concerning the Secretary of State's grant of planning permission on appeal from the local planning authority's refusal of permission, and Bolton Metropolitan District Council v Secretary of State for the Environment (1995) 71 P & CR 309 ("Bolton") concerning the Secretary of State's grant of planning permission on a called-in application. In each of those three cases the reasons challenge failed before the judge at first instance, succeeded before the Court of Appeal, but failed again before your Lordships. In the present case too your Lordships are asked to overturn a decision of the Court of Appeal, in this case allowing a local planning authority's appeal from the judge's dismissal of a statutory challenge and quashing an inspector's grant of planning permission, principally on the ground that he gave inadequate reasons for his decision. A further ground of the Court of Appeal's decision was that the inspector failed to have regard to the unlawfulness of the appellant's occupation of the land. 6. The second respondent, the Secretary of State for Transport, Local Government and the Regions ("the Secretary of State"), chose not to appear in either court below. Concerned, however, at the Court of Appeal's decision and regarding both issues as of general importance, he appears before your Lordships in support of the appellant's case.
The appeal 7. The appeal is brought against a decision of the Court of Appeal (Pill, Mance and Longmore LJJ) on 19 May 2003, [2003] EWCA Civ 687; [2004] JPL 207, allowing an appeal by South Bucks District Council ("the council") against the order of His Honour Judge Rich QC sitting in the Administrative Court on 17 September 2002, [2002] EWHC 2136 Admin, dismissing the council's application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") seeking to quash a decision of the Secretary of State given by his duly appointed inspector by letter dated 19 February 2002. The inspector had allowed an appeal by the appellant ("Mrs Porter") against a decision of the council on 5 September 2000 refusing planning permission for the retention of a residential mobile home at Willow Tree Farm, Love Lane, Iver, Bucks ("the site"). The permission granted by the inspector was subject to conditions including a condition that it was personal to Mrs Porter.
History 8. The appeal has something of a history. This is, indeed, the second time within just over a year that your Lordships have had to consider the circumstances of Mrs Porter's occupation of the site—see South Bucks District Council v Porter [2003] 2 AC 558 ("South Bucks"). 9. Mrs Porter is a 62 year old Romany gipsy who bought the site in 1985 and has ever since lived there with her husband in breach of planning control. The site lies within the South Bucks Green Belt, very close to its eastern boundary with the village of Iver and within the Colne Valley Park. As described in the inspector's decision letter:
10. The detailed planning history of Mrs Porter's occupation of the site is set out, at pp 567-568, in para 7 of Lord Bingham of Cornhill's speech in South Bucks. For present purposes it is sufficient to record, as the inspector did, two previous planning decisions of relevance. The first, in 1994, concerned Mrs Porter's appeal against six enforcement notices relating variously to her residential use of part of the site, the erection of some buildings and the construction of hardstanding. All the enforcement notices were upheld save for that directed to the hardstanding. The second decision was the dismissal of Mrs Porter's appeal in 1998 against the refusal of planning permission for the retention of her mobile home and associated outbuildings. 11. It was following the 1998 refusal of planning permission that the council in December 1999 applied to the court for an injunction under section 187B of the 1990 Act requiring her to cease her residential use of the land, an application granted by Burton J on 27 January 2000 to take effect a year later. Burton J's order was made just two days after Mrs Porter's application for planning permission (the application refused by the council on 5 September 2000) which began the history of the present appeal. On 12 October 2001 the Court of Appeal (myself, Peter Gibson and Tuckey LJJ) allowed Mrs Porter's appeal against Burton J's order—that being the decision unsuccessfully appealed by the council to your Lordships' House in South Bucks. The speeches in South Bucks were delivered on 22 May 2003, just three days after a differently constituted Court of Appeal had allowed the council's appeal in the present proceedings. The inspector's decision 12. In determining the appeal the inspector (just as the council on the original application) was required (a) by section 70 (2) of the 1990 Act to "have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations," and (b) by section 54A of the 1990 Act, as inserted by section 26 of the Planning and Compensation Act 1991, to decide the matter "in accordance with the plan unless material considerations indicate otherwise". 13. The statutory development plan consisted of the County Structure Plan and the council's Local Plan. Put shortly, both provide for a general presumption against allowing inappropriate development in the Green Belt, reiterating national guidance in PPG 2 which states:
14. Having summarised those provisions the inspector continued:
15. The inspector then turned to state his reasons for allowing Mrs Porter's appeal subject to conditions. The most material reasons for present purposes were these:
16. The inspector then imposed two conditions, the first making the planning permission personal to the appellant, the second concerning the landscaping of the site. The inspector expressly stated that a personal condition would be justified "because of the very special circumstances which centre to some extent on the appellant herself". The condition imposed was that:
The statutory challenge
17. The council challenged the inspector's grant of planning permission pursuant to section 288 (1) of the 1990 Act, contending both that the decision was not within the powers of the Act (section 288 (1) (b) (i)) and (5) (b)), and also that a relevant requirement had not been complied with—namely the requirement under rule 19 (1) of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 (SI 2000/1625) to "notify his decision . . . and his reasons for it in writing"—(section 288 (1) (b) (ii)), such failure having substantially prejudiced their interests (section 288 (5) (b)). It is convenient to refer to these grounds of application respectively as "the vires challenge" and "the reasons challenge". 18. Before Judge Rich the reasons challenge was put on the narrow ground that the inspector "fails to give any reasons as to why he has concluded in law that the issue of the status of [Mrs Porter] as a gipsy amounts to a very special circumstance", a challenge unsurprisingly rejected by the judge on the basis that it was not Mrs Porter's gipsy status alone which the inspector regarded as a very special circumstance but rather that status in combination with her chronic ill-health and the unavailability of an alternative site. Her status was clearly of some significance: as recorded in the judgment, the council accepted that Mrs Porter, as a gipsy, "has a rooted fear of and objection to being put in permanent housing where she feared she would be unable to cope". 19. Although a number of grounds were advanced both to the judge and the Court of Appeal in support of the vires challenge the only one accepted by the Court of Appeal and still live before your Lordships is that already referred to: the inspector's alleged failure to have regard to the unlawfulness of Mrs Porter's occupation of her land as a material consideration in the case. In rejecting this ground of challenge the judge accepted, at para 7, that "it must be material whether [a person's occupation of premises] was at all times in breach of planning control" because it "goes to the weight to be attached to this long period of occupation", but concluded that the inspector plainly had it in mind since he had expressly referred to the past planning history of the site and in any event recognised that the application was for retrospective planning permission.
The Court of Appeal's decision
20. The reasons challenge in the form advanced to the judge was not pursued before the Court of Appeal. Indeed we are told that no reasons challenge whatever was pursued in the grounds of appeal and that it was the Court of Appeal itself which took the point. 21. In a reserved judgment helpfully rehearsing the substance of the inspector's decision, the planning policies in play, the rival submissions on the appeal, the basis of the European Court of Human Rights' decision in Chapman v United Kingdom (2001) 33 EHRR 399 ("Chapman"), and the planning considerations in the case, Pill LJ—who gave the only reasoned judgment of the court—stated his conclusions as follows, at pp 215-216:
22. Later in his judgment, at p 216, para 35, in the course of rejecting other grounds of the appeal, Pill LJ reiterated his earlier view as to the inadequacy of the inspector's reasoning:
23. Before your Lordships both Mrs Porter and the Secretary of State take issue with those conclusions. They dispute both the suggested inadequacy of the inspector's reasons and that the inspector failed to consider "the unlawfulness of [Mrs Porter's] occupation . . . in persistent breach of planning control" which "of itself requires the decision to be quashed". I - The reasons challenge 24. As already noted, three previous decisions of this House have considered the reasons requirement in a planning context. In this, the fourth, it is I hope convenient to start by assembling a number of the more authoritative and useful dicta from the many cases in the field. I begin with Megaw J's oft-cited judgment in In re Poyser and Mills' Arbitration [1964] 2 QB 467, 478:
25. In Westminster, Lord Scarman at p 673 set out the above passage and continued:
26. In South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80, 83, Hoffmann LJ, giving the only reasoned judgment in the Court of Appeal, quoted from Forbes J's judgement in Seddon Properties Ltd v Secretary of State for the Environment (1978) 42 P & CR 26, 28 — "Because the letter is addressed to the parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument . . ."—and continued:
27. Turning next to Lord Bridge of Harwich's leading speech in Save, one notes first his citation at p 165 of Phillips J's judgment in Hope v Secretary of State for the Environment (1975) 31 P & CR 120, 123 as providing a "very similar indication of the scope of the duty" to that given in In re Poyser and Mills' Arbitration and as being "particularly well expressed":
28. At p 166G, Lord Bridge "emphatically reject[ed] the proposition that in planning decisions the 'standard', 'threshold' or 'quality' of the reasons required to satisfy the statutory requirement . . . depends upon the degree of importance which attaches to the matter falling to be decided". He held, in short, that a consistent standard of reasoning is required in all planning decisions, adding at p 167C: "the degree of particularity required will depend entirely on the nature of the issues falling for decision." 29. Lord Bridge then turned to consider how the court should approach a reasons challenge advanced under section 245 of the Town and Country Planning Act 1971 (now section 288 of the 1990 Act):
The burden of proof, Lord Bridge pointed out at p 168B, lies on the applicant "to satisfy the court that he has been substantially prejudiced by the failure to give reasons". 30. As to the circumstances in which a deficiency of reasons would cause substantial prejudice, Lord Bridge said at p 167:
31. The first of those three possible causes of substantial prejudice—the developer's (or, as the case may be, his opponent's) uncertainty, through the inadequacy of the reasons, whether or not the decision is properly open to a vires challenge—Lord Bridge elaborated at p 168 as follows:
32. Lord Bridge's final words on the subject, at pp 170-171, were that the requirement "is a salutary safeguard to enable interested parties to know that the decision has been taken on relevant and rational grounds and that any applicable statutory criteria have been observed", adding:
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