South Buckinghamshire DC v. Porter: Planning Law

Planning law: Conflicts with gypsies and travellers

In certain jurisdictions the ideology of fundamental deontological human rights have been embedded for many generations within constitutional documents, in the United Kingdom we are the first generation to deal with these problems and it is inevitable that there will be problems. The most obvious areas where the consequences of the Human Rights Act 1998 will be problematic are those that embody alternative ideologies. One such area is Planning Law which has been argued to be ‘irredeemably utilitarian’^[1]; the conflict between individual rights and the wider social good is intractable throughout all legal dialogues and as with any other there is always a balancing act to be performed. In the case of Planning Law the enforcement of planning regulations especially those concerned with environmental conservation have a distinctly utilitarian motive and in recent years have come into conflict with particular groups of society especially Gypsies or Travellers. The enforcement mechanism pre-dates the HRA and is embodied in the Town & Country Planning Act 1990^[2] thus it has to be re-interpreted in light of human rights legislation, the recent case of South Buckinghamshire DC v. Porter^[3] has brought these issues into stark relief and it is the aim of this essay to deal with the key issues this case has raised in planning law.

The reason that South Bucks has caused such a stir within legal writing seems to be because of its external result rather than the internal legal argumentation that informed the result. In this case Mrs Porter had an ongoing legal battle since 1994 with South Buckinghamshire District Council concerning the lack of planning permission for a dwelling situated on property which she owned. After successive defeats in 1994 and 1998 at the local level^[4] she again applied for planning permission on September 5^th 2000, this was rejected and on her subsequent appeal the Inspector overturned the council’s decision. Despite being reversed in the Court of Appeal, the House of Lords settled the issue^[5] on 1^st July 2004 and affirmed the Inspector’s decision. The external decision looked like a victory for individual rights over the utilitarian social planning system. This was in stark contrast to the fortunes of previous litigants. In the leading pre-South Bucks and HRA cases such as Mole Valley DC v. Smith^[6] and Hambleton DC v. Bird^[7] had always established that the courts would refrain from considering the merits of the case and rely on Wednesbury Reasonableness in reviewing the decision of a local authority. Some authors argued that the process had ‘virtually become a rubber stamping exercise’^[8] and as local authorities were generally hostile towards Gypsies and Travellers setting up houses in protected areas such as ‘Green Belts’ the law supported an in-built bias against such groups. The decision in South Bucks and a few other contemporary decisions^[9] thus represented a massive break from the norm and commentators presented the decision as having ‘dramatically overturned’^[10] existing law and as ‘a major victory for not only gypsies, but also for other people living on their land’^[11]. However, it becomes apparent on a deeper reading of the issues surrounding this case that the simple picture of rights finally triumphing over utilitarian social ideals is somewhat perverting the picture and a deeper understanding of this area of law brings out the impact of this decision.

The first aspect we have to appreciate about this decision is the particular process that we are talking about. South Bucks as decided in the House of Lords initially arose from an application for an injunction under s.187B of the TCPA by the local authority concerned^[12], the use of injunctions within the Planning Law system has never been on a stable jurisprudential basis because of the availability of other remedies and the attitude of the courts towards judicial review of such a foreign subject to legal reasoning^[13]. These other remedies include an enforcement notice^[14] which can lead to a fine or a more general litigation power under s.222 of the Local Government Act 1972^[15]. It is critical to understanding the impact of South Bucks that we acknowledge that injunctions are not designed as tools for individuals to claim their rights but as a method of the local authority exercising their duties in relation to the whole of society. Whilst obviously the day in court gives individuals the opportunity to argue their case as we shall see the injunction process requires a high threshold to overturn a council’s decision and both the sections s.184B that formed the original appeal of South Bucks^[16] and the second review under s.222^[17] which this essay is predominantly concerned with.

Looking at the case law in relation to the pre-1990 injunction mentioned in the previous paragraph, the aspirations of the Carnwarth Report through to the application of s.187B under the TCPA will give us a holistic understanding of the way that individual human rights both pre- and post-HRA. S.222 was very much viewed as a last resort in planning cases and all other avenues had to have been exhausted^[18] under the TCPA 1971, therefore pre-1991 the courts usually required some sort of criminal behaviour to secure an injunction. This is quite distinct from the writers under the TCPA 1990 who claimed it was a ‘rubber stamp’. The Carnwarth report was aimed at strengthening the enforcement procedures of planning control, the report identified that the existing provisions allowed prolonged abuse of the system and flouting of the rule of law, s.222 was identified as a flawed method of enforcement and therefore s.187B was born on the back of the reports desire for ‘a stronger back-up power where the existing remedies have provided or are thought likely to be inadequate’^[19]. The rhetoric of the rule of law and concentration on the powerlessness of local authorities obviously entails a more utilitarian punitive approach even if it is at the expense of certain rights. In light of the South Bucks case the position doesn’t seem to have changed the balance of power in the use of s.187B, as we shall see from the case law there is little change in this position and view of the injunction and it cannot be argued that the impact has been massive in any sense despite the initial enthusiasm the decision was met with.

In Runnymede BC v. Harwood^[20] it was clearly argued that injunctive relief was distinct from the s.222 as it did not require looking at parliamentary intent but merely rested on the existence of the criteria within s.187B. The general approach seemed to be backed up in a number of cases such as Guildford BC v. Smith^[21] and Hambleton BC v. Bird that whilst recognising the rights of individuals in the sense that ‘if compliance with the order would not be within [the defendants’] reasonable capacity^[22]’ it would be rejected as an affront and whilst ‘The granting of any injunction…is dependent on the court’s discretion. This does not however entitle a judge in the present context to act as a court of appeal against a planning decision or to base a refusal to grant an injunction upon his view of the overall public interest’^[23]. The view of the injunction process was seen as being protective of a very minimum of individual rights whilst according primacy and deference to the decision of the local authority as elected individuals in the correct position to make judgements about the public good. The position can be summarised as by Sir John Wood’s dictum; ‘The discretion whether or not to grant an injunction exists but is very limited’^[24]. The courts shied away from any implications that they were making a public policy judgement and the idea of individual deontological rights that are presumed to have been accorded such primacy by the South Bucks decision were definitely ignored.

So we can now see the framework within which the most recent South Bucks decision was taken. After the initial South Bucks in 2003 which concerned arguments of Human Rights and the use of the proportionality test, Mrs Porter again applied for planning application and the Inspector on initial rejection from the council overturned the decision and granted planning permission to Mrs Porter. The council exercising its jurisdiction under s.288 of TCPA 1990 appealed through the different levels and whilst the Court of Appeal initially overturned the council’s decision the House of Lords re-affirmed the approach of the Inspector and settled the case in favour of Mrs Porter. There is considerable confusion between the first case finally settled in 2003 that as decided under s.184B and its potential Human Rights consequences and the decision in 2004 which was a different set of appeals by the Council against the Inspectors decision to allow planning permission.

The impact of the latter, the subject of this essay is debatable in the sphere of s.288 which invokes the supervisory jurisdiction of the courts in reviewing the decision of officials. The impact of this decision on wider administrative law is unclear but as we can see it is arguable in fact that the decision had very little impact as compared to its sister case under s.187B. The invocation of s.288 in Gypsy cases in recent years has been numerous and a quick understanding of the case law surrounding this area is essential to see the impact. The general formulation of the supervisory jurisdiction was done in R v. Hull University Visitor ex parte Page^[25]:

‘If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra vires’

The formulation every Administrative law student knows is that review is on the legality of the decision and not the merits of the decision; South Bucks invokes all these sorts of arguments and deals with the controversial use of human rights and its impact on judicial review.

It is well established in previous case law that the use of Article 8 within the planning system does not alter the supervisory jurisdiction to a consideration of the merits^[26], the major issue in the development of the supervisory jurisdiction has come from another direction. The main concern seems to be the deference principle that is arising in areas such as planning where the courts have no expertise. In the non-planning case of R v. DPP ex p Kebilene^[27] Lord Hope stated that there will be certain social spheres where ‘the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention’^[28]. This seems to have been followed in the planning sense especially after the dicta by Sullivan J in Buckland v SSETR^[29]:

‘The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the court is not well equipped to challenge’^[30]

The effect of this in numerous cases has been to make the application of Judicial Review under s.288 almost impossible because of the large degree of deference paid towards the decision in numerous occasions^[31]. This seems fairly accordant with general administrative law principles as identified before with its focus on the separation of powers. The concentration has become solely trained on checking the local authority has not contravened its vires by not giving regard to Art 8 in their decision-making. The proportionality test has been an issue in both of the South Bucks cases but the one we are concerned with places the importance one the Inspector’s performance of the balancing act. In both Egan and Buckland the courts showed how the proportionality test has been justified to keep the status quo and prevent the planning process from being turned on its head, the pressing social need is seen as outweighing the deontological individual rights. Maurici claims they’ve gone so far as to be in a position where the courts seem to have stated the Inspector’s decision prior to the HRA was already compatible and thus no modification is required. South Bucks has made no sizeable impact on the use of the supervisory jurisdiction both in general and in its specific use in planning law.

In South Bucks the court refused to quash the decision of the Inspector basing it on the fact that the factors in Mrs Porter’s case could constitute a ‘very special circumstance’ under the Planning Policy Guidance 2 which could outweigh inappropriate developments in Green belts. This use of human factors in the courts decision was not explicitly couched in human rights terms like the other South Bucks case but the reasoning is clearly influential. The potential charges of Article 6 against the non-independence of the Secretary of State and his appointed delegate the Inspector and the afore-mentioned use of Article 8 have potential to affect the current use of judicial review. However South Bucks clearly maintains the status quo building on cases such as Basildon DC v. Secretary of State for Environment and Doncaster Metropolitan BC v. Secretary of State^[32]. The case-law clearly follows the pattern of ‘non-interference with the highest ranking administrative decision’^[33]. It is hard to see how the development of this deference principle impacts on Administrative law. It neither contravenes and extends the remit of judicial review beyond its current constitutional position or restricts it in any sense. It is clear that the only ‘firm conclusion’^[34] that can be drawn from the decision is that ‘personal hardship is capable of being a very special circumstance’ but that it will turn on the facts of the case therefore the issue will continue to cause problems in planning applications.

Perhaps the major implication of the case is that the courts have effectively put aside the social aims of the council in this case. The fact that this case represents a failure for the council and the trumping of individual rights by use of the human factors as Miller suggests. However, I don’t find this reasoning persuasive because if this was the case then the decision could be seen as using judicial review to contravene the council’s judgement on social policy. However, the commentators seem to forget that this was a review of the Inspector’s decision and the court refused to interfere with that judgement. The fact that an individual won was merely because the Inspector as the highest administrative decision maker fell down on their side. If he had refused then the case would never arise. The implications of this may be major for planning policy but hardly impact on any established judicial review procedures.

Books

Barnett, HilaireConstitutional & Administrative LawCavendish / 2000/

3^rd ed.

Articles

Planning & Gypsies2005 JPEL 9

Case CommentPlanning Permission For Retention Of2004 JPL 207

Mobile Home – Personal Circumstances

EditorialCurrent Topics (November)2004 JPEL 1463

Johnson, MurdochLocal Authorities, Gypsies & Injunctions2002 NLJ 152

Cottie & Watkinson

Loveland, IanInjunctions, Planning Enforcement &2002 MLR 906

Human Rights

Loveland, IanThe Use of Injunctions under TCPA 19902004 JPEL 8

Section 187B

Maurici, JamesGypsy Planning Challenges in the High2004 JPEL 1654

Court

McCracken & JonesArticle 8 ECHR, Gypsies, And some 2003 JPEL 382

Remaining Problems after South

Buckinghamshire

Miller, ChrisPlaces or People: What Is the point of2005 JPEL 434

Town and Country Planning?

Internet

http://www.landmarkchambers.co.uk/content_view.cfm?cid=902

http://39essex.egovision.com/documents/RC_HRA_2004.pdf

http://www.housingrights.org.uk/downloads/policy/psiresponse.pdf

http://www.tlio.org.uk/chapter7/issue13.htm

www.westlaw.com

www.lexisnexis.com

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Footnotes

^[1] Miller (2005) p.440

^[2] TCPA from now on plus it is worthwhile noting that s.187B was in fact added to the TCPA by the Planning & Compensation Act 1991

^[3] 2004 4 All ER 775 to be referred to as South Bucks from now on

^[4] See Case Comment (2004) p.207

^[5] That is barring any action in the European Court of Human Rights.

^[6] [1992] 24 HLR 442

^[7] (1995) 3 PLR 8

^[8] Johnson, Murdoch, Cottle and Watkinson (2002)

^[9] See Chicherster DC v. Searle & Ors, Wrexham CBC v. Berrry and Hertsmere BC v. Harty & Ors [2001] ALLER 184

^[10] Johnson et al. at N7

^[11] http://www.tlio.org.uk/chapter7/issue13.htm

^[12] In this case South Buckinghamshire

^[13] For good summaries see Loveland (2002), Editorial (2004) and McCracken & Jones (2003)

^[14] Under s.172 of the TCPA which is subject to appeal under s.178 to an inspector and then to a court of Law (s.289)

^[15] Loveland (2002)

^[16] [2003] UKHL 26

^[17] [2004] 1 WLR 1953

^[18] Stafford BC v. Eikenford Ltd [1977] HPL 170

^[19] McCracken & Jones (2003) p.385

^[20] [1994] PLR 22

^[21] [1994] JPL 734

^[22] Quoted from Guildford by Loveland (2002) p.908 and has obvious links to the Administrative Law Wecnesbury principles (see Jones & Pike (2002))

^[23] Pill LJ in Hambleton BC quoted in McCracken & Jones (2003) p.387

^[24] In Leeds CC v. Rogers & Ors 1997L/84 unreported mentioned in McCracken & Jones (2003)

^[25] [1993] 2 AC 237

^[26] See Sullivan J.: Buckland v SSETR [2001] EWHC Admin 524

^[27] [200] 2 AC 326

^[28] quoted in Jones & Pike (2002)

^[29] [2001] 4 P.L.R. 3

^[30] Quoted in Maurici (2004)

^[31] Maurici Ibid. agrees with this conclusion, see also Sullivan J in Egan v SSTLGR [2002] EWHC 389

^[32] [2001] JPL 1184 & [2002] EWHC 808 respectively

^[33] Miller (2005)

^[34] Editorial (2004)