Connors & Ors v Secretary of State for Communities and Local Government & Ors

At the permission stage, the likely consequence that refusal of temporary planning permission may lead occupants to another unauthorised site in the Green Belt can be materially relevant to the harm caused by refusal and the overall planning balance. Where that issue was raised and the Secretary of State arguably failed to address it, there may be a real prospect of success sufficient to justify permission to appeal. A new challenge to the recovery of an appeal should not ordinarily be introduced for the first time in an appeal where it was expressly disavowed below, brought late, and could be pursued by judicial review.

Mrs Jane Lee challenged the refusal of planning permission and the enforcement notice concerning the stationing of a mobile home on Green Belt land. The inspector recommended temporary permission, but the Secretary of State dismissed the planning and enforcement appeals. Mrs Lee’s challenges under sections 288 and 289 of the Town and Country Planning Act 1990 were dismissed by Lewis J in the Administrative Court in July 2014.

On renewal, the Court of Appeal considered whether permission should be granted on the argument that the Secretary of State had failed to address the likelihood of relocation to another unauthorised Green Belt site, and whether a late ground challenging recovery of the enforcement appeal under the Equality Act 2010 and Article 6 of the European Convention on Human Rights should be added.

Permission granted in part. Permission to appeal was granted on ground 2(a), in relation to the section 288 challenge, with permission also granted on the related section 289 appeal. Permission to amend the grounds to add ground 4 was refused.

1. The inspector had concluded that refusal of permission was likely to result in the occupants moving to another unauthorised site, potentially in the Green Belt. That possibility was, in principle, particularly relevant to the harm to the Green Belt resulting from refusal of temporary permission and therefore to the overall balancing exercise. The Secretary of State reproduced most of the inspector’s passage but did not expressly address the reference to a further Green Belt site. Whether the point had been sufficiently raised, and whether it required express treatment, depended partly on the material before the decision-makers. Nevertheless, there was a real prospect that the Secretary of State had failed to address a material consideration. Reliance on Moore v Secretary of State for Communities and Local Government [2013] EWCA Civ 1194, concerning a similar issue, reinforced the arguability of the ground.
2. The second-appeal criteria applied to the related section 289 appeal, but the grant of permission on the section 288 ground provided a compelling reason to grant permission on the enforcement appeal also.
3. Ground 4 was a belated attempt to challenge the recovery direction. The appellant had expressly disavowed such a challenge before Lewis J, the direction had been made over two years earlier, judicial review was available and had in fact been pursued, and no section 289 appeal against the recovery direction had formed part of the earlier proceedings. Moore & Coates v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) did not justify allowing the issue to be raised for the first time in the present appeal. It was wholly inappropriate to permit the late amendment.

The other grounds were not pursued. The application was granted accordingly.

• Court of Appeal (Civil Division): On 17 November 2015, the renewed application was granted on a limited basis. Permission to appeal was given on ground 2(a), including the related section 289 appeal, while permission to amend to add ground 4 was refused: [2015] EWCA Civ 1454.
• Administrative Court, Queen’s Bench Division: Lewis J dismissed Mrs Lee’s applications and appeals under sections 288 and 289 of the Town and Country Planning Act 1990. Judgment was handed down in July 2014.