Smith & Anor v The First Secretary of State & Anor

Where judges hearing a renewed application for permission to appeal are divided about whether the proposed grounds are arguable, the application may be adjourned to a court of three, with the appeal to follow if permission is granted. At the permission stage, it may be arguable that avoiding competition or conflict between Gypsy sites is not a legally relevant planning consideration, and that a policy aimed at containing Gypsies on local-authority sites raises a legal issue. The judgment recorded preliminary views only and made no final determination on those points.

The applicant challenged an inspector’s refusal of planning permission for caravans and access arrangements at Woodside Caravan Park. Sullivan J dismissed the applicant’s appeal under section 288 of the Town and Country Planning Act 1990 on 29 October 2004. Permission to appeal was refused by Sullivan J and subsequently by Laws LJ on the papers.

On renewal before Laws LJ and Sedley LJ, the judges were divided. The central issue was whether the proposed grounds, including challenges to the relevance of competition between sites and to a supposed movement from authorised to unauthorised sites, were arguable points of law.

1. The renewed application for permission to appeal was adjourned to a court of three. The appeal was to follow if permission were granted.
2. Laws LJ considered that Sullivan J had been right for the reasons given below. Where Sullivan J had relied on the inspector’s reasoning, Laws LJ agreed that the reasoning was correct.
3. Sedley LJ expressed preliminary views that grounds (c) and (d) were arguable. Ground (c) raised whether the inspector could lawfully rely on the risk of undue competition for local work and potential conflicts between Gypsy communities. Sedley LJ considered that this might not be a legally relevant planning consideration and might amount to social engineering.
4. Ground (d) raised whether the inspector could properly rely on a trend or shift of caravans from authorised to unauthorised sites, and whether planning policy could lawfully seek to contain Gypsies on local-authority sites.
5. Sedley LJ also considered the decision arguable when viewed as a whole. It was not necessarily sufficient to show that one or two grounds failed if the remaining reasoning made the outcome inexorable. His observations were expressly preliminary and were made without oral argument.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was adjourned to a court of three, with the appeal to follow if permission were granted.
2. High Court, Administrative Court: Sullivan J dismissed the applicant’s statutory appeal on 29 October 2004. Permission to appeal was refused.