Town and country planning – Planning permission – Gypsy site – Defendant local authority granting planning permission to continue using site as residential gypsy site – Claimant applying for judicial review – Whether defendants having sufficient evidence of children on site to justify considering needs of children as material – Application granted
A site known as Dollar Park, Baglitt Road, Holywell, Flintshire, was first occupied by the interested party as a gypsy encampment in March 2007 and an application for planning permission was initially refused and an enforcement notice issued. The interested party’s appeal was dismissed, save for a variation of the enforcement notice to allow the site to be cleared by February 2010. Before the expiry of the enforcement notice, there was a further application for planning permission. The application was refused and the interested party appealed. By a decision in February 2011, the inspector granted temporary permission pending the allocation of sites as part of the local development plan process. He allowed the appeal to the extent of granting permission for five years from the date of his decision, expiring in February 2016.
The defendant local authority granted the interested party planning permission to continue to use the site as a residential gypsy site. The claimant’s house, Glyn Abbot, was opposite the site and overlooked it from a raised position. The permission allowed use of the site to accommodate nine families on seven pitches with thirteen caravans (no more than seven of which were to be static), retention of hard standing and boundary works, retention and continued use of three amenity blocks and erection of a fourth. The temporary permission was limited to a maximum of five years from the date of the grant.
The claimant applied for judicial review of that decision. He contended, amongst other things, that there was no sufficient evidence as to the circumstances of the children of the occupants of the site to justify the defendants’ officer considering any needs of the children as material. The approval related to the whole site but some pitches had no children.
Held: The application was granted.
(1) In planning decisions, as in other areas of decision-making, the best interests of children affected had always to be at the front of a decision-maker’s mind and be treated as a primary consideration. No other consideration could be treated as inherently more significant but the best interests of children might be outweighed by a combination of other factors. Thus, a decision could properly be made only by carefully examining all relevant facts. In a planning context, the child’s best interests were likely to be consistent with those of his parent or other carer who was involved in the planning decision-making process. Once identified, the best interests of the child, although a primary consideration, were not determinative of the planning issue. Nor did the planning exercise necessarily involve merely assessing whether the public interest in ensuring planning controls was maintained outweighed the best interests of the child. However, when considering any decision he might make, the decision maker needed to assess whether the adverse impact on the interests of the child was proportionate: Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin); [2013] 2 EGLR 145; [2013] EGILR 8 applied. Collins v Secretary of State for Communities and Local Government [2013] EWCA Civ 1193; [2013] PLSCS 233 considered.
(2) The court had to focus on the substance of an officers’ report to see whether it had sufficiently drawn attention to the proper approach required by the law and material considerations. It was primarily the function of the planning officer to judge which issues to address in the report and which to omit, as well as the depth to which any issue included in the report was explored and the amount of information supplied. A separate and crucial question for the court was whether the officer’s report was defective because it was significantly misleading. A failure by parties to raise an issue in their representations to the local planning authority might be highly material, if not determinative, unless the legislation required the authority to take that issue into account in any event: R (on the application of Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) followed.
(3) In the present case, the report included advice on the application of the law to the facts. It made the point that the best interests of any children affected by a planning decision were a primary consideration. However, in order to give the interests of children the appropriate weight, it was first necessary to establish the best interests of any particular children and weigh them in the balance with all the other considerations for a grant of permission, a complex and fact-sensitive exercise. The report failed to express correctly the process the planning committee needed to undertake. It worked on the premise that there were children living on the site, but their number, identity and age and whether they were encompassed in the application, were all unknown factors. The statement that the defendants were required to safeguard and promote the wellbeing of children was correct, as was the fact that the impact of any children not having a settled base would need to be taken into consideration if the application were to be refused outright. But in context, those assertions were seriously misleading. They implied that there had been an assessment of the needs of actual children on the site, so that the loss of a settled base could be identified as contrary to their best interests; that the statutory and any other duties stood alone and were not merely important factors to take into account; and that refusal would not be an option.
(4) The view that the existence of children, rather than an analysis of their interests, justified the grant of planning permission in the situation under examination pervaded the report itself and the advice in it. There was no reason to suppose that the decision was made otherwise than in accordance with the facts and recommendation in the report. The decision was flawed for the same reasons that the report was flawed: it manifested an approach to decision-making that was not in accordance with the law. Accordingly, the challenge was made out on the general basis that it ought to have ascertained and evaluated the relevant facts in relation to children. It was impossible to say what the decision would have been if the error of law had not occurred, because the facts remained unclear and the evaluation had not been made.
Kevin Leigh (instructed by Jayes Collier LLP) appeared for the claimant; John Hunter (instructed by Flintshire County Council Legal Services) appeared for the defendants; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Jayes) v Flintshire County Council.
