Hughes v The First Secretary of State & Anor [2006] EWCA Civ 838 (23 June 2006)

Neutral Citation Number: [2006] EWCA Civ 838 Case No: C1/2005/2692(A) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT) (Mr. Justice Collins) CO/2887/2005 Royal Courts of Justice Strand, London, WC2A 2LL 23 June 2006 B e f o r e : LORD JUSTICE MUMMERY LADY JUSTICE ARDEN and LORD JUSTICE MOORE-BICK ____________________ Between: MARK HUGHES Claimant/ Respondent - and - THE FIRST SECRETARY OF STATE and SOUTH BEDFORDSHIRE DISTRICT COUNCIL Respondents/ Appellants ____________________ Mr. Timothy Mould (instructed by the Treasury Solicitor) for the appellants Mr. Alan Masters (instructed by Community Law Partnership) for the respondent Hearing date: 3rd May 2006 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Lord Justice Moore-Bick: This is an appeal by the First Secretary of State against an order of Collins J. made on 14 th November 2005 under section 288 of the Town and Country Planning Act 1990. By his order the judge quashed the decision of the Secretary of State dated 30 th March 2005 refusing to grant planning permission in respect of a parcel of land known as The Evergreens, Tilsworth, Bedfordshire and remitted the matter to him for reconsideration. The land in question lies within the Green Belt and is therefore subject to stringent planning restrictions. The respondent is the head of one of four gypsy families who currently live at The Evergreens in caravans and mobile homes. The families combined their resources to purchase the site which they then occupied by stationing their caravans on it, laying areas of hard standing and dividing it into separate plots by the erection of fencing and other landscaping measures. They subsequently applied for retrospective planning permission for the use of the land as a gypsy caravan site and for permission to station four touring caravans and four mobile homes on it. For convenience I shall refer to the heads of the families as "the applicants" since they were the original applicants for planning permission, although only one of them, Mr. Mark Hughes, is the respondent to this appeal. The planning authority for the area is South Bedfordshire District Council. On 10 th December 2003 its Planning Committee resolved to refuse the application for planning permission and a formal Notice of Refusal was issued on 15 th December. The respondent appealed against that decision to the Secretary of State under section 78 of the Town and Country Planning Act 1990 and in due course a public inquiry was held before an inspector appointed for that purpose. The inquiry was held on various dates between 19 th October and 9 th December 2004. It was common ground that in order to justify a development of this kind on land within the Green Belt it would be necessary for the applicants to show that very special circumstances existed of such significance as to outweigh the ordinary planning considerations and any planning harm that the development itself would cause. The applicants, all of whom have family connections with South Bedfordshire, relied heavily on their need for settled accommodation and on the fact that there is a serious shortage of gypsy sites in the area. The applicants between them have six children of school age, all of whom attend local schools. They argued that the children's education would suffer if they were required to leave the site, particularly if that were to mean a return to roadside camping and an itinerant way of life. The families are registered with a local doctor; they said that if they were forced to leave The Evergreens their opportunity to obtain proper healthcare would also be adversely affected. It was accepted that the personal circumstances of the applicants and their families were a material consideration which could amount to very special circumstances of a kind sufficient to justify the grant of planning permission: see South Bucks District Council v Porter [2003] 2 AC 558 . The Inspector published his report on 26 th January 2005. He found that the proposed development would harm the Green Belt by reducing the openness of the landscape, that it had led to the encroachment of urban features and was in conflict with the policy for the protection of such areas and that it adversely affected the character and appearance of the locality. He made it clear that in the absence of very special circumstances there would be no question of his recommending that planning permission be granted. However, he accepted that there were no alternative sites in South Bedfordshire to which the applicants could move and that led him to the conclusion that if the appeal were dismissed the applicants and their families would be faced with a return to travelling and roadside camping. That finding had obvious implications for the children's education. In his report the Inspector put the matter in the following way: "120. The Appellants have six children of school age who attend schools in the local area, with another expected to follow in due course. I heard that the children have academic ability which is generally below that expected for their age group and that to some extent this results from previous travelling and difficulty in finding a settled base. I was told that the children are now settled at school and have benefited from a period of stability which has allowed some catching up academically. I have no doubt that the opportunity to continue with education in an enduring manner would be of benefit to the children. 121. However, this in itself is not unusual and nor would be the requirement to move school in the event of a move of home. This is a common occurrence in the settled community and cannot be regarded as very special unless the consequences of being moved from the appeal site were to interfere with the opportunity to obtain continuous and stable education. I deal with that point below. . . . . . . . . . . . . . . . . . . . . 124. I accept that the Appellants have regularly resided in or resorted to the area. It is also the case that there are no readily available alternative authorised sites. I am therefore satisfied that in the event of the appeal being dismissed the appellants and their families would be faced with a return to travelling and roadside camping. In such circumstances it seems to me that the possibility for continued education for the various children would be severely hampered. That would be a regrettable consequence and in my view is a substantial and weighty material consideration." He later summed up his conclusions on the existence of special circumstances in paragraph 127 as follows: "Drawing together my findings on these material considerations I conclude as follows. First, although the Council policy has been drawn up in a manner which does not wholly follow the advice of Circular 1/94 and PPG3, I do not accept that this is prejudicial in the circumstances of South Bedfordshire and this case. The policy itself is realistic. Secondly, I am satisfied that there is a need for gypsy sites in the area generally, and this is verified by the findings of the Home Report. The need is one which requires addressing in the short term. Thirdly, the appellants have particular needs based on the fact that they would have no alternative site to go to. There are no available places on sites which are appropriate for their needs and it is not disputed that they would be forced to return to camping in further unauthorised locations if they had to leave the appeal site. Fourthly, their children's education, (and to a lesser extent their healthcare) would be harmed by any actions which resulted in a return to travelling from unauthorised site to unauthorised site. There are a number of children who would be so affected and it is my assessment that this matter should carry substantial weight. The disruption caused to the education of these children would be unwelcome and harmful to their futures. These last 3 material considerations, in my judgment, are sufficient to amount to the very special circumstances needed to outweigh the Green Belt and other harm identified earlier, especially as the harm for landscape to could be mitigated to a degree by planting. . . . . . . . ." His overall conclusion in paragraph 133 was that ". . . . . . There are substantial and weighty material considerations, namely the established need for sites in the area in the short term, the lack of available alternative sites and the disruption to education and healthcare, which would almost certainly flow from dismissal of the appeal, which together are capable of amounting to the very special circumstances required to outweigh the harm identified." He therefore recommended that temporary planning permission be granted. The Secretary of State accepted the Inspector's conclusions on matters of fact, but he reached a different conclusion on the weight to be attached to the various factors which the Inspector had identified and dismissed the appeal. The grounds on which he did so are set out in paragraphs 25-29 of his decision letter from which it can be seen that the critical issue was the weight to be attached to the effect that leaving the site would have on the education of the children. He dealt with the matter in this way: "25. The Secretary of State recognises the educational needs of the children resident on the site and agrees with the Inspector at IR 120 that continuity of education would benefit the children. He agrees with the Inspector's conclusion at IR 121 that children's education may be disrupted in the settled community, as moves can happen, but he considers that the consequences are more serious for Gypsy and Traveller children, who have a history of fragmented education. The Secretary of State therefore agrees with the Inspector that the benefits of being in a settled school environment carry weight in this case. 26. The Secretary of State agrees with the Inspector at IR 124 that there is no readily available alternative authorised site if the appellants are required to leave this site, and this will lead to a return to travelling and roadside camping and to discontinuity of education. The Secretary of State gives this considerable weight. However, having regard to the legal obligations on the local education authority to make appropriate educational provision for children of school age resident in this area, including the children on the site, the Secretary of State is satisfied that appropriate education will be available to the children notwithstanding a refusal of planning permission and a lack of immediately available alternative sites. In the light of this, the Secretary of State considers that the harm to the children's continuity of education if they were required to leave the appeal site is not a very special circumstance of sufficient weight to overcome the harm caused by the development. 27. In so concluding the Secretary of State has had particular regard to the fact that on the available evidence the educational needs of the children at The Evergreens site are not out of the ordinary. Only three of the six children were receiving any recognition for their educational needs and the evidence suggests that no special educational needs were being provided for any of the six, and that all of the children were making adequate progress. For all these reasons, the Secretary of State concludes that the educational needs of the children resident at the site do not amount to very special circumstances and disagrees with the Inspector at IR 124 that continuity of education would be so severely hampered by a move from the site as to amount to a very special circumstance." The applicants appealed to the High Court under section 288 of the Town and Country Planning Act 1990 on two grounds: (a) that in reaching his decision the Secretary of State had failed to comply with the rules governing the conduct of planning inquiries by taking into account fresh evidence in reaching conclusions of fact contrary to those of the Inspector without giving them an opportunity of dealing with it; and (b) that his decision was irrational because he had failed to take account of certain material considerations. The primary grounds of appeal, and the only ones that were pursued before us, arose out of paragraph 26 of the decision letter in which the Secretary of State referred to the legal obligation of the local education authority to make appropriate educational provision for children of school age resident within its area. That is a reference to sections 13, 13A and 14 of the Education Act 1996 which imposes certain duties on local education authorities, in this case Bedfordshire County Council. By section 13 the local education authority is under a duty to secure that efficient primary and secondary schools are available to meet the needs of the population of their area. By section 13A the authority must ensure that their functions relating to the provision of education are exercised with a view to promoting high standards. By section 14 a local education authority must secure that sufficient schools for providing primary and secondary education are available for its area. "Sufficient" in this context means sufficient in number, character, and equipment to provide for all pupils the opportunity of appropriate education, that is, education which offers such variety of instruction and training as may be desirable having regard to their ages, abilities and aptitudes and the different periods for which they may be expected to remain at school. It will be necessary to say something more about these duties at a later stage. Paragraph 17(5) of the Town and Country Planning Inquiry Procedure (England) Rules 2000 provides that "If after the close of an inquiry the Secretary of State (a) differs from the inspector on any matter of fact mentioned in or appearing to him to be material to a conclusion reached by the inspector; or (b) takes into consideration any new evidence on a new matter of fact (not being a matter of Government policy) and is for that reason disposed to disagree with a recommendation made by the Inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reason for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of Government policy) of asking for the reopening of the inquiry." In the light of that provision the applicants argued that the existence of the local education authority's obligations under the Education Act had weighed heavily with the Secretary of State and that since the Inspector had made no reference to them in his report, the Secretary of State had taken into consideration new evidence or a new matter of fact without giving the applicants a chance to deal with it. Collins J. rejected that argument and in my view he was right to do so. As he said in paragraph 21 of his judgment, the existence of the local education authority's legal obligations is a matter of law and as such is, or is deemed to be, common knowledge. It is not, therefore, a matter of fact falling within the scope of rule 17(5). However, he came to the conclusion that the Secretary of State had erred in reaching the conclusion that the existence of those obligations was capable of counteracting the matters relied upon by the Inspector. He said in paragraphs 23-24 of his judgment: "23. As it seems to me it is clear that the existence of the legal obligation would not meet the objections which were raised by the Inspector concerning the problems that would be created by the lack of any settled residence. Furthermore, Mr Masters submits that in assessing the weight to be attached to that matter - and clearly the Secretary of State did attach considerable weight to it because he refers to it specifically as something which enabled him to reach a contrary view to that of the Inspector - it was necessary to consider carefully what was the evidence relating to the effect upon the children. Mr Mould submits that that is apparent from what the Inspector decided. He reached his conclusions and the Secretary of State has not gone behind those conclusions. But if the Secretary of State is going to reach a different conclusion, as it seems to me in the context of this case - and I emphasise this case because the circumstances of this case are peculiar to it and there is no precedent to be derived from any decision reached upon this case - it was essential that the details should be known to the Secretary of State of precisely what was involved in the disruption. He has not been in a position to follow that through. One of the reasons why he has not been in a position to follow that through is that the evidence given by the school headmaster was evidence given without any statement having been put in, so there is no specific record of what was said save for the conclusion of the Inspector that there would be significant disruption. 24. Thus, although it is not, in the circumstances, to be regarded as a matter falling within 17(5), it seems to me that if this was to be regarded as a material factor which justified disagreement with the view of the Inspector, the Secretary of State ought to have enabled himself to have the very fullest information possible relating to it. As I say, and I repeat, it is difficult to see how the legal obligation by itself could meet the objection, for example, that the families might well find themselves unable to settle anywhere in South Bedfordshire, certainly for any significant period of time" Finally, the judge summarised his conclusions in paragraph 32 of his judgment as follows: "32. The main point, as I say, was the children's education. In my judgment, for the reasons that I have given, the Secretary of State did not deal properly with that matter. Essentially, as it seems to me, he had regard to an immaterial consideration in as much as he used the legal obligation of the Council as a matter which persuaded him to decide differently to the Inspector when it could not reasonably have led him to that decision. At least it could not reasonably have led him to reach that decision unless he obtained for himself all the necessary information to ensure that he was well aware of the problems. I do not say that even if he were aware of all the problems he would be, as a matter of law, unable to conclude as he did. Of course, I cannot and do not interfere with his planning judgment. It has been Mr Mould's argument that that is indeed what he was doing. That is certainly what he was purporting to do, but in reaching that judgment he had to have regard to all the matters to which he ought to have had regard. For the reasons I have given, as I say, I do not think in the circumstances of this case that he did." It appears that the judge's understanding of the decision letter was that the Secretary of State took the view that the local education authority would make such provision for the education of the applicants' children in the performance of its legal obligations as would render the disruption and damage to their education much less severe than the Inspector had thought. If that were so, his criticisms of the decision might be well-founded, but Mr. Mould submitted that the judge's understanding of the position was wrong. He submitted that the Secretary of State had accepted all the Inspector's conclusions about the likelihood of a return to roadside camping and the consequent disruption to the children's education if the appeal were dismissed, but had simply attached less weight to them when reaching his decision than the Inspector had. His reference to the local authority's legal obligations was no more than an explanation of the context in which that planning judgment had to be exercised; he was not making any finding about what steps would be taken to ensure that the children remained at school. Mr. Masters, on the other hand, submitted that the statement in paragraph 26 of the decision letter that "the Secretary of State is satisfied that appropriate education will be available to the children" can only be understood as meaning that he was satisfied that these particular children would receive an appropriate education even if they had to leave the site. He submitted, moreover, that an education severely disrupted by a return to roadside camping and an itinerant way of life could not reasonably be regarded as "appropriate". Although the Inspector heard evidence from the head teacher of the school attended by some of the applicants' children, which no doubt formed the basis of some of the conclusions reached in paragraph 120 of his report, only a limited amount of attention appears to have been paid to their particular individual educational needs or to the kind of arrangements that could be made for their education if their parents were forced to leave the site. No doubt much would depend on where they happened to be living at any time. Although one can fairly assume that they would be regularly on the move, they could presumably continue to attend the same schools while they remained in the locality. At any rate, the Inspector's conclusions on this issue in paragraphs 120-124 are expressed in general terms. It is scarcely surprising that he should have concluded in paragraph 120 that the children had benefited from a period of stability in their education which had allowed some catching up academically, or that he should have found that the opportunity to continue with their education in an enduring manner would be of benefit to them. That is what one would expect. Similarly, his conclusion in paragraph 124 that a return to travelling and roadside camping would severely hamper the possibility for their continued education causes no surprise. He says nothing, however, about any particular needs they may have or about the specific manner in which they might in future be met, reflecting, as I understand it, the absence of any detailed debate about these questions before the Inspector. I think Mr. Mould was right in submitting that the judge misunderstood paragraph 26 of the decision letter. It is clear from paragraph 25 that the Secretary of State agreed that continuity of education would benefit the children and that he accepted that the consequences of disruption are more serious for gypsy children than others. He accepted in terms that the benefits of being in a settled school environment carried great weight in their case and he recognised in paragraph 26 that a return to roadside camping would lead to discontinuity of education, a matter to which he expressly gave considerable weight. It cannot be said, therefore, that he disagreed with the Inspector on any of these issues. I think it is safe to assume that the Inspector was well aware of the local authority's obligations under the Education Act 1996 to make provision for the education of children in its area. Certainly there appears to have been no suggestion at the Inquiry that Bedfordshire County Council was unable or unwilling to comply with them. In those circumstances by stating that he was satisfied that "appropriate education will be available to the children" (my emphasis) I think that the Secretary of State was doing no more than saying that he was satisfied that the authority would comply with its statutory obligations so that places in suitable schools would be available to the applicants' children. As far as I can see, that was never in dispute. Mr. Masters submitted, however, that the Secretary of State's conclusion that appropriate education would be available to the children was flatly contrary to the conclusions of the Inspector that their education would be severely disrupted by a return to travelling and roadside camping. A severely disrupted education, he submitted cannot be an appropriate education. If it were the duty of the local education authority to ensure that all children within its area received an education appropriate to their needs and circumstances, there might be some force in his point and in those circumstances the question of how the children would receive such an education once they left The Evergreens would no doubt have been addressed at the Inquiry. However, that is not the case. As I have already pointed out, the local authority's obligation is to secure that efficient and properly equipped schools of sufficient number and type are available to meet the needs of the population in its area. Whether and by what means parents and children take advantage of them is another matter. It was accepted before the judge and before us that the planning judgment in this matter rested with the Secretary of State alone. In order to make it a balance had to be struck between the interests of the community at large, as reflected in the planning considerations, and the interests of the applicants and their families, in particular the children's educational requirements. In the view of the Secretary of State the balance came down in favour of the community at large, notwithstanding the disruption that would cause to the children's education to which, as he said, he gave considerable weight. In doing so he differed from the Inspector, but he did not take into account any matters other than those to be found in his report, nor in my view did he differ from the Inspector on any material fact. I do not suggest that the decision was an easy one, but it was one that he was entitled to make. For these reasons I would allow the appeal and restore the decision of the Secretary of State. Lady Justice Arden : I agree. Lord Justice Mummery: I also agree. 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