Judgments - South Bucks Distict Council and another (Respondents) v. Porter (FC) Appellant

(back to preceding text)

    33.  Save was followed by the decision of the Court of Appeal in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263 where, on another reasons challenge, Sir Thomas Bingham MR felicitously observed, at pp 271-272:

    "I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

    34.  Passing finally to Bolton, the last of the three earlier cases before the House concerned with the scope of the reasons requirement in the planning context, I need refer only to a short passage in Lord Lloyd of Berwick's speech at pp 314-315:

    "[I]n so far as [the Court of Appeal in that case] was saying that a decision letter must refer to 'each material consideration' I must respectfully disagree. This seems to go well beyond Phillips J's formulation in Hope v Secretary of State for the Environment [(1975) 31 P & CR 120, 123]. What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the 'principal important controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden.

    . . .

    Since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for drawing any inference [the inference suggested being 'that the decision-maker has not fully understood the materiality of the matter to the decision'] will necessarily be limited to the main issues, and then only, as Lord Keith pointed out [in R v Secretary of State for Trade and Industry, Ex p Lonhro plc [1989] 1 WLR 525, 540], when 'all other known facts and circumstances appear to point overwhelmingly' to a different decision."

The law summarised

    35.  It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.

    36.  The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.

The law applied

    37.  Having identified Mrs Porter's hardship as consisting of being "a very unwell gipsy without another pitch to occupy", the Court of Appeal decided that if this was to constitute "very special circumstances" which "clearly outweighed" this "inappropriate development", then the inspector had to provide what was variously described as "a much fuller analysis", "a more comprehensive approach to the issue", "clear and cogent analysis", "the case for hardship considered in a broader context and with fuller reasoning" and "a more comprehensive approach" (see paras 21 and 22 above).

    38.  Mr George QC for Mrs Porter and Miss Lieven for the Secretary of State submit that this was substantially to overstate the reasons requirement upon the inspector. The main issue before him, really the only issue, was whether Mrs Porter's hardship constituted "very special circumstances" for granting her the personal planning permission she sought. There was no issue of law in the case; no issue of fact (certainly none once the inspector had concluded that an alternative site was "unlikely" to be available to Mrs Porter "for a considerable time"); and no Wednesbury challenge, i.e. no suggestion that the inspector could not reasonably have reached his conclusion on the facts. What was required of him was above all a value judgment whether the hardship which would result from dispossessing Mrs Porter from her land was sufficiently extreme and unusual to justify the environmental harm occasioned by her remaining there as long as she needed.

    39.  That personal circumstances are themselves capable of being a material consideration in a planning case is well established—see Westminster at p 670F ("the human factor . . . can . . . and sometimes should, be given direct effect as an exceptional special circumstance"—per Lord Scarman), and South Bucks at p 580, para 31, ("the Secretary of State was entitled to have regard to the personal circumstances of the gipsies"—per Lord Bingham). Indeed Lord Clyde in South Bucks at p 593C-D, para 75 described Mrs Porter's (and Mr Berry's) circumstances as "quite special": in part because they owned the land in question and in part because, although the land lies within the Green Belt, "it is not suggested that there is any urgent environmental problem".

    40.  Whilst, however, acknowledging that personal hardship can give rise to very special circumstances, Mr Straker QC for the council argues that more explanation was required than the inspector gave as to why he reached that particular judgment on the facts of this case. The Court of Appeal, he submits, was right to demand "a much fuller analysis".

    41.  I cannot accept that submission. To my mind the inspector's reasoning was both clear and ample. Here was a woman of 62 in serious ill-health with a rooted fear of being put into permanent housing, with no alternative site to go to, whose displacement would imperil her continuing medical treatment and probably worsen her condition. All of this was fully explained in the decision letter (and, of course, described more fully still in the reports produced in evidence at the public inquiry). Should she be dispossessed from the site onto the roadside or should she be granted a limited personal planning permission? The inspector thought the latter, taking the view that Mrs Porter's "very special circumstances" "clearly outweighed" the environmental harm involved. Not everyone would have reached the same decision but there is no mystery as to what moved the inspector.

    42.  Quite why the Court of Appeal thought that some fuller explanation was demanded is unclear. It may be that they focused so closely on the importance of maintaining the Green Belt that they inflated the reasons requirement in this particular case. But this would be to offend against the principle established in Save that the standard of reasoning required is not dependent upon the importance of the issues involved—see para 28 above. In any event the test to be satisfied under the policy guidance in PPG2—whether there exist very special circumstances which clearly outweigh the environmental harm resulting—of itself provides the Green Belt with its necessary protection. Or it may be that the Court of Appeal relied more heavily upon Doncaster (referred to in para 31 of its decision—see para 21 above) than was appropriate here. The decision letter in Doncaster, it should be noted, "left [Sullivan J] in real doubt as to whether, in striking the Green Belt policy balance, the inspector applied the correct policy, as set out in PPG 2" (p 1523, para 73). He added at para 74:

    "Even if it cannot be categorised as perverse, this decision is so perplexing on its face that it is of particular importance that the inspector should be seen to have applied the correct test in Green Belt policy terms."

    The personal circumstances in question there, one notes, consisted of no more than the gipsy's concern that his two children's education should not be disrupted by a move. Small wonder that the inspector's grant of planning permission was regarded as perplexing to the point of perversity, and the decision letter as leaving real doubt whether the inspector had erred in law. In the present case, by contrast, no rationality challenge was ever advanced and nor was there any basis in the inspector's reasoning for inferring a material misdirection whether of fact, law, policy, or anything else. This inspector was, I may point out, highly experienced and qualified both as a planner and a surveyor.

II - The vires challenge

    43.  The Court of Appeal found that the inspector had failed to have regard to a material consideration, namely "the unlawfulness of the applicant's occupation . . .in persistent breach of planning control".

    44.  It is, of course, plain that Mrs Porter's occupation of the site has been unlawful from the outset. What arises for decision under this head of challenge is, first, whether that was a material consideration, and secondly, if so, whether the inspector failed to have regard to it. As already indicated, the judge at first instance thought it material (going to "the weight to be attached to this long period of occupation"), but held that the inspector took account of it. Before your Lordships, however, both the Secretary of State and Mrs Porter question even the materiality of the unlawful occupation of the site. I shall therefore consider this question first.

The materiality of unlawful use

    45.  Miss Lieven for the Secretary of State points out that section 73A of the 1990 Act, as inserted by section 32 of and Schedule 7 to the Planning and Compensation Act 1991, expressly provides for the grant of retrospective planning permission for development carried out without permission prior to the date of the application. Nothing in the 1990 Act (or the predecessor legislation making like provision) suggests that a retrospective application should be treated any differently from an application for future development. True it is that by section 57 (1) of the 1990 Act "planning permission is required for the carrying out of any development of land". But a breach of planning control is not itself a criminal offence and indeed, although unlawful, cannot be enforced against after (in most cases) four years. Even within the four year period, the Secretary of State's guidance on enforcement (contained in paragraph 6 of PPG 18) provides:

    "In assessing the need for enforcement action, LPAs should bear in mind that it is not an offence to carry out development without first obtaining any planning permission required for it. . . . Accordingly, where the LPA's assessment indicates it is likely that unconditional planning permission would be granted for development which has already taken place, the correct approach is to suggest to the person responsible for the development that he should at once submit a retrospective planning application (together with the appropriate application fee)."

    46.  The mere fact, therefore, that the development was in breach of planning permission and the application for permission was made retrospectively cannot of itself, submits Miss Lieven, be a material consideration militating against the grant of permission. Rather the question for the LPA (and, on appeal, the Secretary of State) is simply whether the development as carried out is acceptable in planning terms.

    47.  Miss Lieven's argument goes further. She points to the Court of Appeal's decision in R v Leominster District Council, Ex p Pothecary [1998] JPL 335 holding that the fact that a building has already been constructed before planning permission is sought can, in certain circumstances, lawfully be regarded as a consideration in favour of a permission which would not otherwise have been granted. Following the building's erection there, the LPA had chosen not to serve an enforcement notice but rather had invited an application for retrospective planning permission. Schiemann LJ, giving the leading judgment, said at p 345:

    "The authority are only empowered by section 172 (1) to issue an enforcement notice if it appears to them that it is expedient to issue the notice, having regard to the provisions of the development plan and to other material considerations. I therefore reject the submission that a planning authority is never entitled to consider the likelihood of enforcement action at the time when the application for retrospective planning permission for a building erected without planning permission is before them. It is not rare that buildings are put up without the appropriate planning permission. Sometimes there is no planning objection at all. Sometimes there is an insuperable objection. There are many situations between the two ends of what is a continuum. There are situations where the authority would not have given permission for the development if asked for permission for precisely that which has been built, but the development is not so objectionable that it is reasonable to require it to be pulled down. To require this would be a disproportionate sanction for the breach of the law concerned. That is why Parliament has imposed the requirement of expediency. What weight the authority gives to the existence of the building is a matter for the authority. There are policy reasons . . . for not giving much weight to the existence of a building put up without the necessary planning permission, but these will not prevail in every case. . . .[T]here can . . . be cases where the authority can say that, while it would not have granted the permission for that precise building there, it is not expedient to require it to be pulled down. Circumstances vary infinitely."

    48.  Robert Walker LJ, at p 347, agreed with that approach:

    "I agree that the planning authority was not merely entitled, but in practice bound, to take account of the existence of the [building] which had been constructed without planning permission having been granted. It was a relevant fact that had to be taken into account. The weight to be attached to the fait accompli was another matter."

    49.  I too agreed, at p 349:

    "Reluctant though inevitably one is to allow a developer to be advantaged by having broken the law, that advantage must by definition accrue in certain cases - notably whenever the local planning authority do not think it 'expedient' to enforce against a breach of planning control - and yet it will be a rash developer who builds in expectation of such benefit: he is at risk of being ordered to pull down his development and thus stands to lose everything."

    50.  The Court of Appeal's view on this issue appears to have rested principally upon the European Court of Human Rights' judgment in Chapman, para 102 of which reads, at p 428:

    "Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community."

    51.  But reliance upon that authority, submits Miss Lieven, was inappropriate: Chapman was concerned with an article 8 claim to respect for the individual's home and not, as here, with whether the individual has established very special circumstances outweighing the public interest in preserving the Green Belt.

    52.  In my judgment Miss Lieven's argument goes too far. I do not accept that the unlawfulness of development can never properly militate against the retrospective grant of planning permission (but only, as in Ex p Pothecary, in its favour). Rather it seems to me that wherever the occupier seeks to rely upon the very fact of his continuing use of land it must be material to recognise the unlawfulness (if such it was) of that use as a consideration operating to weaken his claim. Take this very case and assume that Mrs Porter had been relying on her long period of residence to assert that her removal from the site now would cause her particular hardship beyond that resulting from removal after a substantially shorter period of occupation; hardship, for example, by breaking a number of local ties and friendships. Such a claim would seem to me to raise issues closely analogous to those arising on an article 8 claim and to require substantially the same approach to the lawfulness or otherwise of the period of occupation as the European Court adopted in Chapman.

    53.  A further point should be made. A development without planning permission is one thing: it is unlawful merely in the sense of being in breach of planning control. Where, however, as here, it has been persisted in for many years despite being enforced against, that is a rather different matter: it is then properly to be characterised as criminal.

    54.  I would find it impossible to say in such circumstances that the unlawfulness of Mrs Porter's prior occupation of the site was incapable of being of material consideration in the case. Whether in fact it was material, however, would depend on the way her hardship claim was advanced. If she was seeking actually to pray in aid her long period of occupation, then to my mind Judge Rich was clearly right to say that the unlawfulness of that occupation would diminish the weight of the case. As it seems to me, however, that really was not the nature or strength of Mrs Porter's hardship claim. The inspector's only mention of her occupation of the site "for a considerable period of time" appears in para 7 of his decision (see para 15 above) and its consideration there was not as a possible point in Mrs Porter's favour but rather as a possible point against her on the basis that it might have cost her her status as a gipsy (although in the event no such contention was advanced).

    55.  When the inspector came in para 13 of his decision to summarise the very special circumstances of Mrs Porter's case—her status as a gipsy, the lack of an alternative site in the area, and her chronic ill- health—none of these factors appears to have owed anything to the length of her residence on the site; her case would have been no different even had she occupied the site for an altogether shorter period.

    56.  Certainly the inspector found her case for a retrospective planning permission strengthened since its last consideration in 1998 by two subsequent changes of circumstance which, obviously, would not have occurred but for the passage of time whilst she remained in unlawful occupation of her mobile home. That is not to say, however, that she was relying on her continuing unlawful occupation in itself as constituting part of her hardship claim.

    57.  I therefore conclude that the unlawfulness of Mrs Porter's prior occupation of the site was of little if any materiality in the particular circumstances of this case.

    Was regard had to this consideration

    58.  Assuming, however, in the council's favour that the unlawfulness (including, on the facts here, the actual criminality) of Mrs Porter's occupation of the site was a material consideration to which regard was required to be had under section 70 (2) of the 1990 Act—see para 12 above—was the Court of Appeal correct in concluding that it was overlooked?

    59.  This conclusion too I find unsustainable. The nature and extent of the unlawful use here was never in doubt. Even assuming it was a material consideration it did not give rise to a "main issue in dispute". Clearly, therefore, the inspector had no need to refer to it in terms—see Lord Lloyd's speech in Bolton cited at para 34 above. How, then, can it properly be inferred that the inspector overlooked the point for what it was worth? He knew, indeed recorded, that the application was for the "retention" of the mobile home and that "retrospective planning permission is sought". He knew, and indeed summarised, the planning history of the site including Mrs Porter's unsuccessful appeal against the council's enforcement action. That is no basis upon which to infer that the inspector wrongly ignored this consideration. Of course Mrs Porter could gain no credit from her long period of unlawful occupation. But nor was her claim for a retrospective planning permission necessarily to be defeated by it. This element of the case required no detailed discussion in the decision letter. Again, therefore, I conclude that there was no substance in this ground of challenge.

    60.  It follows from all this that I would allow Mrs Porter's appeal and restore Judge Rich's order dismissing the council's statutory application with costs. The council should also pay Mrs Porter's costs both here and below. There will be no order as to the Secretary of State's costs.


Lords Parliament Commons Search Contact Us Index

© Parliamentary copyright 2004
Prepared 1 July 2004