TOWN AND COUNTRY: PLANNING PERMISSION

Listed building - development - local authority - members of conservation advisory committee also on planning committee - whether dual membership giving rise to appearance of bias - whether planning committee having sufficient information to reach decisions - claim allowed

R (on the application of Georgiou) v Enfield London Borough Council and others: QBD (Administrative Court): Mr Justice Richards: 7 April 2004

The claimant, a local businessman, applied to the court under section 288 of the Town and Country Planning Act 1990 to quash a decision of the defendant council to grant: listed building consent for a change of use of a property into offices and a consulting room; and planning permission for the erection of a mental health nursing home for up to 60 people within its curtilage, subject to the conclusion of a planning obligation agreement under section 106.

The proposals had been considered and were supported by the defendants' conservation advisory group (CAG), some members of which were also on the planning committee.

The claimant complained that the council had not taken into account matters raised by one of its officers concerning highways and access matters, and that the fact that some members of the planning committee were also members of the CAG had given rise to the appearance of bias.

He also argued that members of the planning committee had not been adequately informed in relation to the issues of need for the proposed scheme, and its effect on existing services, and with respect to consultation responses.

David Wolfe (instructed by Bindmans, London) for the claimant; Toby Davey (instructed by the solicitor, Enfield London Borough Council) for the defendants; Anthony Dinkin QC and Mary Cook (instructed by Beachcroft Wansboroughs, London) for the interested parties, Cygnet Healthcare Ltd, Rainbow Developments and Mr J and Mr JC Patel.

Held: The claim was allowed.

In dealing with the apparent bias, it was necessary to look beyond pecuniary or personal interests and consider whether, from the point of view of a fair-minded and informed observer, there was a real possibility that the planning committee or its members had been biased in approaching the decision, and that they had done so with a closed mind and without considering impartially all relevant planning issues.

That question had to be approached with caution, since it was important not to apply the test so as to render impossible, or unduly difficult, local authority decision-making.

However, the circumstances of local authority decision-making were not such as to exclude the broader application of the test altogether.

In the present case, a fair-minded and informed observer would probably have concluded that there had been a real possibility of bias as a result of the support expressed by the CAG to the proposals in the context of the planning committee's decisions: Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 applied; Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) and R (on the application of Cummins) v Camden London Borough Council [2001] EWHC 1116 (Admin) considered.

There had been a failure adequately to inform the committee about the highways and access, and the healthcare need and service impact issues.

The concerns could have been met by conditions or outweighed by other considerations, but it was for the committee to form the relevant judgment, and members needed more information than they had been given.

Furthermore, on the issue of need, the report to members was materially deficient and misleading: R v Selby District Council, ex parte Oxton Farms [1997] EGCS 60 considered.

TOWN AND COUNTRY PLANNING: GYPSIES

Enforcement notice - gypsies - caravan site - second defendant forced to stop travelling due to ill health - whether gypsy status continuing - claim allowed

Basildon District Council v First Secretary of State and another: QBD (Administrative Court): Judge Rich QC: 20 April 2004

The claimant was the local planning authority for an area that included the appeal site, which lay within the metropolitan green belt.

The second defendant and her extended family of Romany gypsies had been travelling in the area for approximately eight years when they were obliged, following the second defendant's ill-health, to cease their nomadic lifestyle.

The family subsequently moved into static caravans situated on the appeal site.

The claimants issued two enforcement notices, alleging unauthorised development of the site.

The operations notice related to operational development by the removal of topsoil, the construction of perimeter bunding, and the laying of hardcore to form a hardstanding area.

The use notice concerned the material change of use of the site arising from the deposit of hardcore and the siting of caravans.

The second defendant appealed against the two notices.

An inspector appointed by the first defendant allowed the appeals, quashing the enforcement notices and granting planning permission for the retention of the entire development, subject to conditions.

He concluded that it would be unreasonable and unjust to conclude that a person who had been born a gypsy should cease to retain his gypsy status simply because ill-health or infirmity restricted the ability to travel.

The claimants challenged the inspector's decisions under section 288(1)(b) and 289(1) of the Town and Country Planning Act 1990.

They contended, among other things, that the inspector had erred in concluding that, at the time of his decisions, the second defendant and her family were gypsies within the meaning of section 24 of the Caravan Sites and Control of Development Act 1960.

Michael Bedford (instructed by the solicitor, Basildon District Council) for the claimants; David Watkinson (instructed by Community Law Partnership, Birmingham) for the second defendant; the first defendant did not appear and was not represented.

Held: The claim was allowed.

The inspector had erred in concluding that the second defendant had retained gypsy status, and his decision could not be supported in the light of recent Court of Appeal decisions.

Gypsy status should be assessed at the time at which the appeal was being considered, and a stated intention to settle permanently and to abandon a nomadic lifestyle could mean that gypsy status would be lost.

Loss of status did not depend on the decision to abandon a nomadic lifestyle being made voluntarily: Hearne v National Assembly for Wales, The Times, 10 November 1999.

Gypsy status could continue following a temporary break in travelling, but the ability to travel was a fundamental characteristic of a nomadic way of life.

Where, as here, an individual or family expressed an intention permanently to retire from travelling, they could no longer be considered to have a nomadic lifestyle.

They might regain it later if they once again started to travel but it could not be said to continue: Wrexham County Borough Council v National Assembly for Wales [2002] EWCA Civ 835; [2004] JPL 65.